The Law of the Activating Welfare State 9781509913237, 9781509900244

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Preface

A decade ago, the reorganisation of the German welfare state begun. It complied with European standards, and was based on an approach that had been identified as a “good practice” in the Netherlands, Denmark, France and the United Kingdom. This reorganisation did not primarily aim at the “dismantling of the welfare state”. On the contrary, it cost the state more than the previous system! However, the reform signalled a fundamental reorientation of social policy – towards the activating welfare state. The reorganisation to this day remains controversial. Some were pleased with the outcome of the reform; but only very few are aware of its motives. Since this time, it has become commonplace to criticise the reforms for not having – or at least not adequately – “explained” their policy. Indeed, apart from some leaflets and rather short-winded statements by the protagonists, the reforms were most notably described in terms of what they consist of and what they concretely involve for the persons concerned. Their motivations and goals were not revealed. Instead, the reforms were accompanied by a muffled murmur cloaked in sweeping statements. Above all, one could distinguish a diffuse disconcertment on account of unfamiliarity with, and the resulting repudiation of, the reforms. By contrast, the conditions and implications of the changes have hardly been at issue, and the actual novel character of the reorganisation has hardly been questioned. Legal scholars in particular were eager to examine the numerous individual modifications in detail, but, thus far, the latter have not been fully conceptually understood and systematically classified. The above underlies the reason for this volume. It brings together partial answers to certain aspects of the indicated transformation of the German law. It combines them with some observations concerning the changes to the principal European norms and the discourse in the EU about the reorientation of the social policy from the perspective of the modernisation of the social protection systems (Article 153(1)(k) TFEU). This work was inspired by two visiting professorships in Paris and Manchester, which I enjoyed at the beginning and at the end of the summer term 2012 in the context of a sabbatical term granted by my own university. Both stays afforded me the opportunity to get a clearer idea of the efforts undertaken throughout Europe – especially in the EU Member States with a rich socio-political tradition – with respect to the reorienta-

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Preface

tion of their social policy towards the activating welfare state, and to absorb the discussions and analyses that took place in these states. During the writing of this book, the staff at my chair – Sarah Brückner, Jeannine Dinnebier, Florian Wilksch, Kai Bekos and Christina Hellrung – were of considerable help and assistance. The script was maintained and prepared for printing by Sylvia Bernhardt in her habitual masterly manner. I would like to cordially thank all of you for your tireless aid and emphatic support. Jena, December 2012

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Eberhard Eichenhofer

Abbreviations

Abs. AEUV APuZ Art. ASSEDIC BB BEM

Absatz (paragraph) Vertrag über die Arbeitsweise der Europäischen Union (Treaty on the Functioning of the European Union) Aus Politik und Zeitgeschichte (journal) Article

DÖV DRdA

Association pour l’emploi dans l’industrie et le commerce Der Betriebsberater (journal) Betriebliches Eingliederungsmanagements (Workplace integration management) Berufsgenossenschaftliches Institut für Arbeit und Gesundheit (The Institute for Work and Health of the German Social Accident Insurance) Entscheidungen des Bundessozialgerichts (decisions of the Federal Social Court of Germany) Bundessozialhilfegesetz (German Federal Social Security Act) Bundestags-Drucksache (Official records of the German Bundestag) Entscheidungen des Bundesverwaltungsgerichts (decisions of the Federal Administrative Court of Germany) confer chapter command paper Communication from the European Commission Deutsche Demokratische Republik (GDR, German Democratic Republic) Die öffentliche Verwaltung (journal) Das Recht der Arbeit (journal Austria)

DRV e.V. EC ECtHR ed. eds. ESA ESC et al. et seq. EU EUCFR

Deutsche Rentenversicherung (journal) eingetragener Verein (registered association) European Communities European Court of Human Rights editor editors Employment and Support Allowance European Social Charter et aliae et sequens/et sequentes European Union Charter of Fundamental Rights of the European Union

BGAG

BSGE BSHG BT-Drs. BVerwGE cf. ch. Cm COM DDR

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Abbreviations EUV GDR GG GVG HC HMSO i.a. i.e. IAO ibid. ICESCR ILO id. IZA J.S.S.L. JZ LPK-SGB II No. NZS OECD OGH OGH SSV NF

OJ OUP p. pp. PARE PPAE RdA RVO SBZ SEK SF SGb SGB TEU

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Vertrag der Europäischen Union (Treaty on the European Union) German Democratic Republic Grundgesetz (German Basic Law) Gesellschaft für Versicherungswissenschaft und -gestaltung e.V. (German Association for Actuarial Science) House of Commons Her Majesty's Stationery Office inter alia id est Internationale Arbeitsorganisation (ILO, International Labour Organization) ibidem International Covenant on Economic, Social and Cultural Rights International Labour Organization idem Institut zur Zukunft der Arbeit (Institute for the Study of Labor) Journal of Social Security Law (journal Great Britain) Juristenzeitung (journal) Lehr- und Praxiskommentar Sozialgesetzbuch II (teaching and practice commentary to the German Social Code, book 2) Number Neue Zeitschrift für Sozialrecht (journal) Organisation for Economic Co-operation and Development Oberster Gerichtshof (Österreich) (Austrian Supreme Court of Justice) Entscheidungen des Obersten Gerichtshofes (Österreich) in Sozialrechtssachen, neue Folge (decisions of the Austrian Supreme Court of Justice in social law matters, New Series) Official Journal of the European Union Oxford University Press page pages Plan d'Aide au Retour à l'Emploi Projet Personnalisé d'Accès à l'Emploi Recht der Arbeit (journal) Reichsversicherungsordnung (Social Insurance Code of the German Reich) Sowjetische Besatzungszone (Soviet occupation zone) Arbeitsdokument der Europäischen Kommission (SEC, European Commission Working Document) Sozialer Fortschritt (journal) Die Sozialgerichtsbarkeit (journal) Sozialgesetzbuch (German Social Code) Treaty on the European Union

Abbreviations TFEU TuP UDHR VDR Vol. vs. VSSR ZfA ZfS ZfSH/SGB ZSR ZVersWiss

Treaty on the Functioning of the European Union Theorie und Praxis der Sozialen Arbeit (journal) Universal Declaration of Human Rights Verband Deutscher Rentenversicherungsträger (German pension insurance association) Volume versus Vierteljahresschrift für Sozialrecht (journal) Zeitschrift für Arbeitsrecht (journal) Zeitschrift für Schadensrecht (journal) Zeitschrift für die sozialrechtliche Praxis (journal) Zeitschrift für Sozialreform (journal) Zeitschrift für die gesamte Versicherungswissenschaft (journal)

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I. The research question

Promoting and challenging, taking responsibility for one’s self and incentives, empowerment and enabling – new guiding concepts have changed the language and the thinking in social policy in the last decade. In this way, the countless transformations of the welfare state, which is subject to continuous change, have progressively given rise to a new conceptual leitmotif in the past decades: the activating welfare state. It stands for a fundamental programmatic reorientation. It proceeds from the historically confirmed insight that the best assistance is to have someone help himself! Hence, from a historical perspective, activation is not new to the welfare state. The emergence and development thereof consistently progressed with activation, which, therefore, has always been associated with the welfare state as a concept. The establishment of relief works for the poor during the Early Modern Ages went hand-in-hand with the prohibition of begging, in order to encourage do-nothings to work. Social security ran parallel to compulsory education, so that the graduates would find secure gainful employment. Social protection was intended to improve the workers’ health, and benefit the “hard workers” and the “righteous”. However, at the same time, and throughout its existence, the welfare state has also been challenged by those who sought to obtain benefits under false pretences. The welfare state is constantly in motion and is exceedingly complex in its structure. As a result, an analysis thereof cannot be expected to be an easy task. In the following section, activation shall not, in the main, be discussed. This is because this activation coexists alongside social benefits. In this capacity, the welfare state has already been the subject of frequent political, sociological and socio-philosophical debates. Instead, the present analysis will focus on the numerous changes in the recent policies on oldage security, the family, the labour market, education and integration, as well as on dealing with sick and disabled persons. These changes have exposed all those entitled to social benefits to ample expectations to cooperate ever since. At present, the legally guaranteed and traditional social rights are largely, or even entirely, contingent upon the beneficiary’s participation. These expectations are regularly specified by individual acts of the social security administration; they cater to the particular need and, in case participation is omitted, sanctioned through the reduction of the claim: a 15

The research question

carrot and stick, give and take model replaced the social benefits system once principally geared towards the unilateral granting of benefits. This occurred both within a short space of time and on a large scale. Since then, the social benefits system intermeshes assistance and demand. In this manner, it combines assistance and challenges. This reorientation from the once “passive” provision of benefits toward the activating welfare state is not limited to Germany, but rather corresponds to a pattern that can be observed at a global level, and certainly in Europe. In the last decades, the activating welfare state has taken the place of the supporting welfare state on a worldwide scale and its concrete manifestation has become visible in many places. This change has prompted sociological discussion, and has led to a socio-philosophical debate. By contrast, thus far, legal theorists have acknowledged these changes somewhat hesitantly, with bewilderment and by adopting a “wait and see” attitude rather than perceiving it as giving rise to a fundamental reorientation. At times, jurists respond to the nonjurists active in this debate concerning the activating welfare state in a downright piqued and dull-witted manner. The debate draws on legal terms that are often not to be understood in a strictly “legal” sense, but rather metaphorically. Therefore, the question arises: what do these legalsounding terms mean? The jurists in particular should thus be interested in these changes. However, they lack the necessary awareness that the transformations of the law governing social benefits, influenced by the activation, not only represent specific adjustments of numerous individual provisions. Rather, these changes ground the entire law of social benefits on a new conceptual basis. The activating welfare state fundamentally reframes and restructures the basis of one’s claim to social benefits. Entitlements to benefits contingent on the beneficiaries’ cooperation have taken the place of unilateral defined benefits that are subject to legal conditions. The reorganisation of the welfare state into the activating welfare state not only changes individual legal provisions but, closely linked to this, deeply transforms its legal structure. Legal scholars should feel challenged by this, and face up to the aforementioned changes. This transformation raises a myriad of new legal issues, which do not find an adequate answer in the light of the traditional rules: What do these new objectives and instruments imply? How far does the concrete contribution expected from the individual go, and where are its limits? What can contracts achieve and change, what is amenable to contractual negotiation about social benefits claims and what is not? Un16

The research question

der which conditions are sanctions admissible, how far can they go and which restrictions must be observed? Many new questions have arisen in the course of the transformation of social welfare law, but only a few answers to these questions are, as yet, available. Hence, the transition to the activating welfare state leads to considerable legal uncertainty. Questions are raised wherever new instruments have brought about new law. But the debate about the activating welfare state predominantly revolves around isolated issues, and is pursued with a view to finding pragmatic solutions to a straightforward problem concerning an individual branch of benefits. However, there are no considerations relating to the legal principles governing the activating welfare state on the whole. The following reflections seek to contribute to this debate. They shall pin down the reasons for as well as the means of, the forms of, and the limits of, activation. These questions are mostly novel, and the answers to them are, as yet, not sufficiently clear-cut, both in particular and in their context. At times, it is presumed that the new notions cover little more than new rhetoric and semantics. The study will also elaborate upon this subject matter, and shall demonstrate that, although some issues are familiar, many are redefined and must consequently be reconceived in legal terms. To begin with, the following part will expound the EU law-related origin of the approach to the reform, and illustrate the pan-European circulation of activating elements in the welfare state by taking the example of the Netherlands, Denmark, the United Kingdom, France and Germany (I). To be sure, the focus of these efforts has been, and still is, labour market policy; but activation is by no means restricted to jobseekers and those out of work. Persons with disabilities, the elderly, the sick, immigrants, and parents of minors are likewise encouraged to participate in the activating welfare state. The efforts are not concentrated on Germany – if anything, many reforms were transposed from European neighbouring states, since they were identified as “best practices” in the context of the European and international discourse and, therefore, have rather been received in Germany (II). Following this, the study inquires into the programmatic foundations of a social policy relying upon activation. For that, one must determine the relationship between labour and social benefits (III). Demanding selfresponsibility in the context of social benefits relationships is the motive that, by and large, represents the driving force behind the reorganisation. In the meantime, the idea of self-responsibility has found its place in the welfare state’s benefits programme; however, it is designed so as to be 17

The research question

complemented by the administration, and can only unfold with the latter’s assistance. Tackling and overcoming the potential for abuse and fraud inherent in the social benefits system is likewise part of the reform (IV). Instead of abstract and general configurations aiming at structuring generic needs, the activating welfare state favours the individual solution. The transition towards the activating welfare state finds its expression in new instruments, namely the passage in the social administration from operating on the basis of binding statutes to contractual relationships. As a consequence, the administration shifts its perspective and function. Case management strategies geared towards integration into the labour market or to social inclusion take the place of law enforcement, aiming at the clarification of the eligibility criteria. These measures, guided by law and oriented towards the ideal of equality, are informed by an effort to ensure the concrete success of the action undertaken (V). The beneficiary does not experience the activating welfare state any more – in the traditional way – as promoting his or her interests but also as an entity that makes demands. In the activating welfare state, the elementary benefits are hence tied to their concomitant obligations that condition them. The sanctioning of omitted acts of cooperation thus often becomes a separate, new legal task. Sanctions are however only possible and admissible within the scope of the law; above all, they are subject to formation and limitation, legitimation and determination in accordance with the rule of law (or Rechtsstaat) (VI). Hence, the activating welfare state alters not only the conditions for the provision of benefits, but also has repercussions on the level of the benefits. If an individual, as the recipient of social benefits, is comprehensively co-responsible for her or his well-being, this also affects the scope of the social protection. Then, a supplementary selfprovision is no longer something irregular, but rather a necessary component of a mode of social protection that also relies upon individual efforts (VII). The activating welfare state thus profoundly modifies the traditional welfare state, because it fundamentally redefines not only its contents but also its legal architecture. Therefore, it also grounds the law of the welfare state on new principles: traditional social law becomes the law of the activating welfare state (VIII).

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II. Activation in Europe

1. Activation in the EU a) Socio-political orientation of the EU Within the EU – namely in the Member States belonging to the Eurozone – the employment situation and employment policy no longer solely belong to the internal competences of the states. Their economic and social order represents an integral part of the internal market, and is hence governed by its maxims. For economic and monetary reasons, the harmonisation of the economic developments of all the Euro States is not only desirable, but also necessary. Such harmonisation calls for a public budget policy oriented to the Maastricht criteria – that is, a public debt of 60 % of the gross domestic product, and a decreasing level of new indebtedness. Harmonisation should also be sought in all the economic parameters that are central for the economic capacity of every Member State, such as, for instance, the employment situation. At a high unemployment rate, production potential remains unexploited. This is why growth, as well as revenue from taxes and social security contributions falls short of potential levels. Simultaneously, unemployment entails substantial social benefits and, in this way, greatly burdens the public coffers. Therefore, in 1997, the employment policy of all the EC Member States was subject to a Community vote in accordance with Articles 2, 3(1)(e), 125 – 130 EC. It is now enshrined in Articles 145 – 151 TFEU. This was to direct the EU project focused on economic progress, the internal market and growth towards the socio-political goal of full employment, which has always been a central concern of the internal market. This is clearly and unequivocally revealed by its definition. Article 3(3) TEU reads: “The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and territorial 19

Activation in Europe

cohesion, and solidarity among Member States. It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.” This expresses a link – which is too rarely appreciated1 – between an economic and a social objective as the ultimately central ground of existence of the EU. Is it because of the vehemence of the provision or because of unfamiliarity with the socio-political postulates specified and present therein or finally because of the common perceptions about the alleged opposition between economy and welfare state that the normative content of the momentous connection between economic and social policies established in this provision is not even remotely clearly recognised? Indeed, Article 3(3) TEU unambiguously shows: the internal market is not an end in itself, but rather a means of achieving economic (price stability and growth) and social objectives (full employment and social progress)! The provision thus outlines in clear language that the internal market devotes the economy to social objectives. In the internal market, economic activity may therefore be exercised for the sake of social ends – namely to ensure full employment, to produce and expand the general wealth, to further social balance, and to seek and strengthen the social integration of all population groups. The economic and social tasks are not only correlated, but the economic integration must be understood as a mere means toward the socio-political progress that is ultimately aspired to. The social market economy that is also addressed by Article 3(3) TEU equally serves primarily social objectives: social justice, social protection, and combating social exclusion through social inclusion. The internal market is thus not to be established for its own sake, but is rather an instrument, and the decisive one at that, for an economically integrated and, at the same time, social Europe. This latter builds upon the competition in the internal market and is to be created through legal harmonisation and social policy. The transition to the activating welfare state belongs in this context too. Therefore, the internal market is not an economic project that lowers the social standards in the Member States because the competition required ____________________ 1

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Cf. the commentaries at Ruffert, in Callies/Ruffert, EUV/AEUV, Art. 3 EUV recitals 25 et seq. or Becker, in Schwarze (ed.), EU-Kommentar, Art. 3 EUV recital 14 “ein schöner Traum” (Hans Kelsen); Pechstein, in Streinz (ed.), EUV/AEUV, Art. 3 EUV recital 7: he perceives this norm to circumscribe the internal market supplemented by various objectives; the commitment to the social market economy would not be of autonomous significance. Why not?; Müller-Graff, in Müller-Graff/Schmahl/Skouris (eds.), Festschrift Scheuing, 600.

Activation in the EU

and promoted by the internal market would call for the elimination, or at least the lowering, of social standards – as the prevalent doctrine of the supposed priority of the “negative” over the “positive” integration (i.e. integration that is focused on legal harmonisation)2 does not tire of propagating. Rather, the internal market is chiefly an instrument to yield prosperity and, in this manner, engender economic conditions for social protection and balance. It is for this reason that the internal market essentially serves socio-political ends and objectives.

b) The European employment strategy: activation This basic attitude is also revealed by the European employment strategy. It centrally counts upon the activation of the unemployed and other persons that are impaired in their labour market position through social disadvantages – such as sickness or disability. It was thereby in a position to substantially incite a comprehensive reorganisation of the Member States’ socio-political institutions. A decisive element of the EU employment policy consists in the promotion of international collaboration. The Member States can promote “innovative approaches” by means of the European Social Fund (Articles 162 et seqq. TFEU).3 This is intended to contribute to the dissemination of especially successful approaches in the employment policy of individual Member States: “best practices”. Some of the outstanding innovations were steps towards the development of employment conditions in accordance with the fundamental maxims of the “activating welfare state”. In 1997 – starting with the Luxemburg Summit – the European Council continuously made decisions and adopted resolutions in order to get back to full employment in the EU. Based on Article 129 EC, a European employment strategy emerged. Its purpose is to coordinate, analyse and review the employment policy pursued by the Member States and to orient it to common goals.4 The strategy extends the open method of coordination, developed for the purpose of harmonising the Member States’ policies with the EU’s objectives in economic, budgetary and environmental poli____________________ 2 3 4

Scharpf, MPIfG Working Paper 97/8, November 1997. See also Eichenhofer, in Streinz (ed.), EUV/AEUV, Art. 162 recitals 1 et seq.  Héritier, Die Europäische Beschäftigungsstrategie, 2005; Steinle, Europäische Beschäftigungspolitik, 2001; Abig, SF 2005, 113; Erhag, in Stendahl/Erhag/Devetzi (eds.), A European Work-First Welfare State, 2008, 11; Devetzi, in Stendahl/Erhag/Devetzi (eds.), ibid., 31 et seq.

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Activation in Europe

cy, to the employment policy. This method links the EU and the Member States in the joint coordination of their policies based on the principle of the subsidiarity of norm setting processes. It serves the pursuit of the EU’s common goals, and is guided methodologically by the principles of a management by objectives, that is, the verification of the achievement of the objectives through the prior definition of goals and subsequent evaluation of the achievement of the objectives by way of a deliberation. The European employment strategy serves the targets formulated in Article 3(3) TEU. It is intended to give shape to the social market economy and to secure full employment.5 It aims at job flexibility, while at the same time ensuring the employees’ social security (‘flexicurity’). With this, it attempts to create the conditions under which job losses are reduced or prevented and new employment can develop. Its objectives concentrate on the reduction of youth unemployment, reforms of the social benefits, tax and education systems in order to engender more employment, the promotion of active ageing and lifelong learning, balancing distortions of the employment market – namely the lack of balance of labour supply and demand (job matching) –, incentives for business start-ups, the extension of new knowledge-based jobs, the promotion of a more flexible work organisation by way of fixed-term employment relationships, projects, parttime and temporary work, as well as the enhancement of equal opportunities for men and women. The concrete consequences of such a strategy are the attempts to increase the level of employment of older employees, raising the number of actors in the labour market that complete their school education, as well as combating poverty by integrating those that are excluded from employment into the labour market. The activation of persons with social disadvantages due to unemployment, sickness, disability or insufficient education occupies a central position in such a strategy. The activities thus far undertaken on the basis of the European employment strategy concentrate upon enhancing the employees’ employability, strengthening entrepreneurship, improving the adaptability of companies and employees to changed economic and social conditions, and on increasing the employment opportunities of those groups that are underrepresented on the labour market (women, families, and older and disabled employees).6 ____________________ 5 6

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Steinle, 237, 243; Niedobitek, in Streinz (ed.), EUV/AEUV, Art. 145 AEUV, recital 10; Devetzi, in Stendahl/Erhag/Devetzi (eds.), A European Work-First Welfare State, 2008, 31 et seq.; Erhag, in Stendahl/Erhag/Devetzi (eds.), ibid., 11. Ashiagbor, The European Employment Strategy, 2005; Steinle, 163 et seq.

Activation in the EU

The EU Social Policy Agenda of 28 June 2000 (Lisbon strategy)7 formulated the increase in employment as a central economic- and sociopolitical objective. Furthermore, it provided for binding benchmarks for the extension of employment of all persons capable of work, particularly women and the elderly. Lifelong learning was to be fostered, and a tax and social benefits system to be created, which would provide incentives to engage in employment and to increase the level of employment (to make work pay). The objective was to prevent a scenario whereby drawing social benefits is economically more attractive than pursuing gainful employment.8 The European employment policy thus clarifies the relationship between the economy and social policy. It drew its impetus from proposals drafted by the OECD9 as well as from the social policy of those Member States that have implemented a successful employment policy – namely the Netherlands, Denmark, the United Kingdom and France. In the past decades, all of these States have made the transition to the activating welfare state, with a significant degree of diversity in terms of implementation, but with conceptual conformity. In the activating welfare state, the economy is expected to facilitate social welfare; in particular, it is to expand employment as the basis of all productivity and the prosperity resulting therefrom. In keeping with Article 3(3) TEU, the European employment strategy thus combines economic efficiency with social equity.

c) The modernisation of social protection through activation With the start of the EU-wide efforts towards the modernisation of social protection (Article 153(1)(k) TFEU) in 2001, social protection systems, “which are designed to protect people against social risks,”10 have become the focus of political attention and of EU policy. This can be explained by the far-reaching financial and economic consequences of these systems. They develop an important effect for productivity, employment, consumption and investment just as they determine the people’s living conditions ____________________ 7 8 9 10

COM(2000) 379 final, Guidelines for Member States’ employment policies for the year 2002 of 13 September 2001, COM(2001) 511 final. Abig, SF 2005, 113; Council document 2003/578/EC of 22 July 2003, OJ L 197 of 5 August 2003, 13 et seq. Dingeldey, Der aktivierende Wohlfahrtsstaat, 2011, 18. Strengthening the social dimension of the Lisbon strategy: Streamlining open coordination in the field of social protection; COM(2003) 261 final, 3.

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Activation in Europe

and the economic situation of companies and employees active in the provision of social services. Hence, social security is an elementary economic and socio-political factor, and is therefore also highly relevant in the internal market. Despite its significant financial consequences, social protection should, in the EU’s view, not only be considered “from a financial perspective”11: “Increasingly, social protection is seen as having the potential to play an important role as a productive factor, ensuring that efficient, dynamic, modern economies, are built on solid foundations and on social justice.”12 Hence, social protection does not prejudice economic development but, as part of the socio-economic governance, is the central condition for economic success13 . Conversely, the latter generates the prerequisites for mass prosperity, full employment and social justice – entirely in line with the objectives stipulated in Article 3(3) TEU. In central positions, the EU Lisbon strategy reproduced the intentions recorded by Tony Blair and Gerhard Schröder in the memorandum “Der Weg nach vorn für Europas Sozialdemokraten” 14 /“Europe: The Third Way/Die Neue Mitte” in 1998. Accordingly, politics should be committed to social justice and economic dynamism at the same time. “The essential function of markets must be complemented and improved by political action, not hampered by it.”15 It is claimed that, in the social benefits system, all too often “rights were elevated above responsibilities, but the responsibility of the individual to his or her family, neighbourhood and society cannot be offloaded on to the state.”16 The welfare state would have to combat poverty and to prevent social exclusion. In doing so it should however “not row, but steer: not so much control, as challenge.”17 Therefore, it should create a social security system “that opens up new opportunities and encourages initiative”.18 “The state must become an active agent for employment, not merely the passive recipient of the casualties of economic failure. … A welfare system that puts limits on an individual’s ability to find a job must be reformed. … Modern social democrats want to transform the safety net of entitlements into a springboard to personal re____________________ 11 12 13 14 15 16 17 18

24

Ibid., 6. Ibid., 3. Ibid., 5. Blair/Schröder, Blätter für deutsche und internationale Politik 1999, 887 et seq. Blair, The Third Way, 1998. Ibid. Ibid. Ibid.

Activation in the EU

sponsibility. … The tax and benefits systems need to make sure it is in people’s interests to work.”19 In the central statements just as in the guiding perspectives, this conception has been concisely and precisely encapsulated in the strategy of the “Third Way”20. It envisions itself as a contribution to the reinforcement of growth and solidarity, and hence as a model, which transcends a nationally constricted distributive statism and opposes a neoliberalism that is ostentatiously indifferent towards social questions.21 The approach is far more influenced by the Scandinavian labour market strategies than by the US-American workfare programme. The Third Way does not aim to overcome capitalism, but rather to tame it through binding rules fostering the social balance.22 “A reformed welfare state must meet the requirements of social justice but simultaneously also acknowledge and integrate the active choice of a lifestyle, fit into ecological strategies and respond to new risk situations.”23 Social risks not only involve dangers but, at the same time, lay the foundations for individual energy and social development.24 “The policy of the Third Way is mindful of a new relationship between the individual and the community, and it strives for a new determination of rights and duties. The leitmotif of this new policy is the maxim: no rights without responsibilities. The government has numerous responsibilities, including the protection of the weak. By contrast, the outdated social democracy model was inclined to conceive rights as unconditional claims.”25 Therefore, the policy of the Third Way is opposed to neoliberalism and is not to be equated therewith – as unfortunately almost habitually occurs. Whereas the latter considers the welfare state to be the root of all social injustices, the Third Way accepts the welfare state as a point of departure, albeit being aware of the fact that unemployment and social hardship are most dramatic in those societies in which average wages and social bene____________________ 19 20 21 22 23 24 25

Ibid. Giddens, The Third Way, 1998; Dingeldey, 24 et seq. Ibid., 26. Ibid., 44. Ibid., 45. Ibid., 63. Ibid., 65 (“Die Politik des Dritten Weges achtet auf ein neues Verhältnis von Einzelnem und Gemeinschaft und erstrebt eine neue Bestimmung von Rechten und Pflichten. Man kann als Leitmotiv der neuen Politik die Maxime nennen: keine Rechte ohne Verantwortlichkeiten. Die Regierung hat zahlreiche Verantwortlichkeiten, darunter den Schutz der Schwachen. Die altmodische Sozialdemokratie neigte hingegen dazu, Rechte als unbedingte Ansprüche zu verstehen”).

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Activation in Europe

fits are low and in which inequality is rampant. Developed and egalitarian societies, on the other hand, also hold a higher potential to redress social disadvantages, unemployment and marginalisation.26 This implies a clear and unequivocal commitment to the reform of the welfare state under the banner of the activating welfare state. The latter’s central ideas also informed numerous reform proposals developed since 2001 within the framework of the open method of coordination of social policy.27 Full employment creates the necessary conditions for the coming generation to be able to pay affordable contributions to the provision for the elderly.28 This requires the reduction of benefits for early retirement29 and the extension of working lives.30 In addition, social policy must provide incentives to increase employment in general, particularly via the employment of groups at risk of poverty.31 This can help improve the situation, in particular, of single parents, which presupposes public measures for the better reconciliation of professional and family life.32 In conformity with Article 3(3) TEU, the internal market thus combines economic and social policy. The former takes place on a socio-political basis and it serves socio-political objectives. Hence, economic efficiency and social policy are not mutually antagonistic; both are inextricably linked, since they are closely related to each other. In the European social model33, its point of reference, foundation and its conceptual fixation is provided by the description of the internal market’s objective in Article 3(3) TEU. Today, the European social model finds its institutional expression in the activating welfare state.

____________________ 26 27 28 29 30 31 32 33

26

Sarfati, in Sarfati/Bonoli (eds.), Labour Market and Social Protection Reforms in international Perspective, 2002, 11, 50. Eichenhofer, Sozialrecht der Europäischen Union, 2010 (4th edition), recitals 469-471. European Commission, Adequate and sustainable pensions – Joint Report by the Commission and the Council, 2003, 16. Angemessene und nachhaltige Renten – Arbeitspapier der Kommission vom 10.4.2006, SEK (2006) XXX, 34. European Commission, Adequate and sustainable pensions – Joint Report by the Commission and the Council, 2003, 44 et seq. Renewed social agenda: Opportunities, access and solidarity in 21st century Europe, COM(2008) 412 final. Ibid., 6, 10 et seq. Eichenhofer, Sozialrecht der Europäischen Union, 2010 (4th edition), recital 530 et seq.

The Netherlands

2. The Netherlands a) From the “Dutch disease” to the “Dutch miracle” In recent decades, the employment policy of the Netherlands fascinated its neighbour states. Its beginnings date from the early 1980s, when the Netherlands, afflicted by weak growth, suffered from high unemployment and national debt. The “Dutch disease”34 became a common notion in those years. By the end of the 1990s, this weakness had been overcome. New borrowings were no longer necessary. On the contrary, over a period of several years, the Dutch state even attained a surplus in revenues. Unemployment had dropped to under 4 %. Over a period of more than one and a half decades, the growth had balanced out at 2 % a year. The “Dutch disease” was followed by the “Dutch miracle”.35 It was brought about by the “polder model”. Between 1982 and 1996, the employment rate increased from 5,5 to 6,8 million, that is, by an annual average of 1,6 % (the EU average over this period was 0,5 %). The costs of labour remained constant, whereas they increased annually by 2 % in France and by 2,6 % in Germany during this period.36 Accordingly, in the mid-1990s, the employee costs in the Netherlands were 10 % lower than in Germany. At the same time, however, the inequalities in the distribution of income increased, whereas they had decreased in the two preceding decades. The increased unemployment was linked to the growing pressure at the workplace.37 The reform was in accordance with the traditions that characterise the Netherlands. Yet, it was also determined by the special challenges that the Netherlands was facing at the beginning of the 1980s. The drastic increase of the oil price after 1973, as well as the economic structural change in industry and the provision of services led to a stagnancy of the economic production with simultaneous high inflation (stagflation). Similarly to other Western European states, at first, the Netherlands attempted to overcome the crisis by extending public demand, with the help of Keynesian instruments of tax, and the duty increases that accompany them. However, these approaches were not able to alleviate unemployment. On the contrary! The growing charges increasingly appeared to be shackles for the economy. More and more, the conviction won through: state intervention ____________________ 34 35 36 37

Citation from Visser/Hemerijck, “A Dutch Miracle”, 1997, 9. Zanden, Driewerf hoera voor het poldermodel, 2002, 344. Ibid., 22 et seq. Hartog, The Netherlands: So what’s so special about the Dutch model?, 1999, p. 66.

27

Activation in Europe

does not solve the employment problems but is the problem itself! The Netherlands – a prosperous nation for centuries – experienced the economic crisis as a deep moral and political crisis. The government acknowledged this with humiliation and stout-heartedly took another direction.38

b) The Wassenaar Agreement The Dutch post-war society was consensus-oriented. In the design of the working and economic conditions as well as that of social policy, social partnership was predominant. After the state, in the late 1970s and early 1980s, repeatedly suspended the agreements concluded by the social partners, in Wassenaar in 1982, the state and the social partners consensually agreed to coordinate tax, collective bargaining and social policy in the future. This was done with a view to re-establishing the conditions for economic, social and political stability. In particular, all of the actors recognised unemployment, which they considered to be much too high, as a central challenge. It was to be overcome through joint efforts. The agreement, entered into in 1982 and updated in 1989, 1993 and 1997, provided for the exercise of restraint as regards the development of wages and for the reduction of working hours, for the laying of the foundations for economic growth through cuts in taxes and charges and for the limitation of wages and salaries of public servants so as to decrease public spending.39 This policy was successful. Between 1983 and 1996, the budget deficit dropped from 8,9 % to 1,4 % of the gross national product. The state’s share sank from 58 % to 47 % and the tax and contribution ratio decreased from 47,4 % to 44,4 %. The parties to the collective agreement sought a solution by way of a cut in working hours without wage compensation, the reduction of overtime and the significant extension of part-time employment; this solution initially had to be pushed through against the professed resistance of the concerned parties.40 Early retirement schemes were imposed upon older male employees. The reduction in working hours led to a restriction of the annual volume of work by 5 % to 6 % per employee over the course of 15 years. Nevertheless, the Netherlands still surpassed Germany in terms of ____________________ 38 39 40

28

Visser/Hemerijck, 169; Schettkat, in Ipsen (ed.), Arbeitslosigkeit - Herausforderung für Gemeinden und Kreise, 2000, 57. Hartog, 1 et seq. Hartog, 19.

The Netherlands

the rate of the annual working hours per employee at that time. Part-time work increased considerably. Furthermore, no particular efforts were made to better reconcile professional and family life.41 The lowering of wages of public servants by 2 % to begin with, with subsequent raises limited to the rate of inflation intensified the disparities in income between the private sector and the public service. At first, this policy relied upon tax cuts and reductions in social charges. Besides, the lowering of the minimum wage was to create incentives to increase employment. Part-time and temporary work developed considerably, and a substantial part of the growing employment traced back to these new forms of employment. The trade unions gave up their initial reservations after the employees of temporary employment agencies were able to negotiate their own collective agreements.

c) New regulations in the promotion of labour and the provision for invalidity A further focus was on the reform of the social security system. In the early 1980s, the invalidity, sickness and unemployment benefits reached the total of 80 % of net income. The difference vis-à-vis the income earned was thus minor – all the more so as certain social benefits were supplemented by collectively agreed additional benefits, fewer taxes were accrued, and the beneficiaries were also not exposed to work-related charges. The invalidity pensions determined by the business associations (bedrijfsverenigingen) were paid to everybody that was not able to find employment in the general labour market due to a physical or psychological impairment. With increasing unemployment, the number of invalidity pensioners also rose, since the chances on the general labour market for employees limited in their capacities were reduced due to the high level of unemployment. Consequently, in the first half of the 1980s, the Netherlands recorded the highest rate of disability pensions at international level among all comparable states, at 13,5 % of the workforce. The replacement ratio of 80 % also applied to sickness benefits. Critics therefore contended that the Netherlands would present a high absenteeism rate as compared to international standards, especially as sickness benefits were to be paid by the social insurance and not by the employer. Increasingly, the criticism was raised that the Dutch welfare state would ____________________ 41

Ibid., 19.

29

Activation in Europe

allow welfare without work.42 This was due to the fact that the unemployed would be supported instead of – as actually required – being activated to self-help. Increasingly, it was realised that such a policy had set in motion a downward spiral – a vicious circle of high employment costs and at the same time low net earnings: The premature retirement of less productive employees from the working world would entail higher social security contributions, which would involve further employee redundancies with the result that there would be a continuing downward spiral of “welfare without work”.43 As a final consequence, such social policy would give rise to a new lower class of non-employed, poorly qualified people permanently depending on social benefits that would never again be able to position themselves within the formal labour market.44 Therefore, the replacement ratio for cash benefits in case of unemployment, invalidity and sickness was reduced from 80 % to 70 % and the duty to pay sickness benefits, which had been borne by the social insurance system until then, was placed upon the employers. Finally, the obligation to secure income was raised by a new definition of work, which unemployed persons and those impaired in their capacity to work by ill health could be reasonably expected to perform. According to this definition, every form of work ought to be reasonable. The wholesale lowering of the replacement ratio was to increase the margin between earned and social security income, and thereby to make gainful employment more attractive compared to drawing social benefits. By transferring the continued payment of wages in case of illness from the social insurance to the employer, a strategy was crafted that aimed to tackle skiving off work as well as to extend the prevention of health-related harm in companies. The broadening of the standard of reasonableness of gainful employment expressed a change in the understanding of solidarity. Instead of securing acquired rights to social benefits, it was aimed at henceforth activating and committing employees capable of work to self-help. From this, the model of the activating welfare state has developed, which this reform powerfully moved into the public consciousness for the first time. Eventually, an organisational change occurred as regards the provision of benefits. Rather than the business associations close to the employers, the pub____________________ 42 43 44

30

Esping-Andersen, in id., Welfare States in Transition, 1996, Chapter 3. Visser/Hemerijck, p. 137. Ibid.

The Netherlands

lic authorities were entrusted with the provision of benefits. They granted these by largely rejecting the influence of the social partners oriented towards economic rationality. Until the 1970s, the labour administration confined itself to the support of the unemployed and, in the light of full employment, only made slight efforts towards an active employment policy. Since the early 1980s, under the guidance of the Minister for Social Affairs and Employment, it sought to counter the permissive, “soft” state that had hitherto refused to establish any requirements for the beneficiaries of social welfare whatsoever. The latter was substituted by a demanding state apparatus, and the former centralisation of the labour exchange bureau gave way to its decentralisation. The public monopoly on placement was waived in 1990. Since then, diversity and variety in private (temporary) employment agencies has emerged. The now nascent active employment policy focused on the longterm unemployed and young people. These acquired a right to a schoolleaving qualification as well as to a basic vocational training (Wet educatie en beroepsonderwijs). Subject to their age, young people obtained adequate training and employment guarantees in the amount of the minimum wage; also the longterm unemployed were eligible to the latter (with a possible raise by 20 % maximum) for employments in the public service, in the health care system and similar activities in the general interest. Those employing longterm unemployed persons received public aid for their social insurance contributions.45 In this way, the social benefits system was to develop from a safety net into a springboard, social benefits and counter obligations were to be re-proportioned; instead of relying on the public employment sector, the regular labour market was to become the primary addressee of the labour administration’s integration efforts.46 The activation draws on the strategies of the new public management; it is committed to the aspiration to build a social order that secures work and means of subsistence for everyone as formulated in Article 19 of the Dutch Constitution.47 In this context, the reforms of the disability pensions must also be mentioned.48 They must be understood as a response to the fact that the disa____________________ 45 46 47 48

Hartog, 38 et seq., Visser/Hemerijck, 155 et seq. Sol/Sichert/Lieshout/Koning, in Eichhorst/Kaufmann/Konle-Seidl (eds.), Bringing the Jobless into Work?, 2008, 161 et seq. Ibid., 171 et seq. Pennings, in Devetzi/Stendahl (eds.), Too sick to work?, 2011, 77 et seq.; van Oorschot/Boos, 2 (2000) European Journal of Social Security, 343.

31

Activation in Europe

bility pensions were too high when compared to international standards. The employers were committed to providing the benefits in place of social insurance providers. This is because they would in fact be better placed than the latter to tackle the causes of the diseases in the companies and to deal with possible abuses of the benefits system. In case of a partial incapacity for work, the pension is to be calculated in such a way that the insured person seeks and takes up part-time employment. The reform pursues the objective of ensuring the integration of those incapacitated for work into a working environment that proves to be increasingly receptive thereof;49 accordingly, minor incapacities for work entail a complete prescription of the benefits; activation measures are combined with the regulations for the protection of employees with disabilities.

3. Denmark Between 1993 und 1999, Denmark50 was able to reduce its unemployment rate from 12,4 % to 5,7 % – the latter being the lowest since 1976 – and over the same period, the rate amongst young people from 12 % to 3,7 %. Three quarters of the jobs were created in the private sector. The reform succeeded without adverse effects on the balance of payments and the stability of the public budget. Denmark did not have to get into debt, but generated surpluses. In the late 1990s, the country had by far the highest employment rate when measured by international standards, including all OECD states. The Danish employment policy is not only fascinating because of its results. Of special appeal is its attempt to combine growth and welfare with combating unemployment, and an elaborate and highly developed system of social security with a highly flexible labour market compared to international standards. Hence, since 1990 a policy has been introduced and practised which makes the granting of social benefits conditional on the beneficiary’s own cooperation; furthermore, an attempt was made to intensify the orientation ____________________ 49 50

32

Pennings, in Devetzi/Stendahl (eds.), Too sick to work?, 2011, 77, 81 et seq. Bertelsmann-Stiftung (ed.), Internationales Beschäftigungsranking 1998, 1998, 127 et seq.; Kvist/Pedersen/Köhler, in Eichhorst i.a. (eds)., Bringing the Jobless into Work, 2008, 221; Obinger/Starke/Moser/Bogedan/Gindulis/Leibfried (eds.), Transformation of the Welfare State, 2010, 80 et seq.; Madsen, in Sarfati/Bonoli (eds.), Labour Market and Social Protection Reforms in International Perspective, 2002, 243; Dingeldey, 194 et seq.

Denmark

towards the general labour market.51 Since 2002, these efforts have been combined with an endeavour to integrate immigrants. In order to reduce the incentives for immigration, the social security rates for this group of people were reduced considerably. With respect to married couples, social benefits were cut after a transitional period because it is supposed that that at least one of the partners lacks the necessary readiness for work. Profiling has been introduced: jobseekers are categorised into five groups according to their degree of employability. The entire social policy was based on the central idea that the state would primarily have to assist those that are guided in their behaviour by economic rationality, namely those who purposefully seek employment.52 One hallmark of the Danish labour market is its high degree of flexibility, notably as regards the establishment and the termination of an employment relationship. Similarly to the USA, Canada and New Zealand, Denmark, in principle, does not provide for safeguards for existing employment relationships. However, employees are entitled to protection against immediate dismissal in the form of periods of notice. This protection covers a period of one to six months, depending on the duration of the employment at the time of the dismissal by the employer. Within this period, the employee is allowed time off work to apply for another position. Moreover, dismissals on arbitrary, discriminatory grounds, namely based on gender, ethnic origin or religious belief as well as during pregnancy, are inadmissible. Likewise, employee pay is only safeguarded to a limited degree. The employer must pay severance pay only to employees with more than 12 years of job tenure. Such pay amounts to a maximum of 12 month’s wages in the case of discrimination or another form of inadmissible dismissal. In Denmark, unemployment insurance is widely developed. Unlike in almost all the other states examined, it is based upon a legal obligation that ensues independently from the employee’s will. Rather, the protection is borne and organised by the trade unions and arises by virtue of voluntary membership. Since each employee is and must be free to join a trade union, the establishment of protection against unemployment is also at one’s individual discretion. However, protection through the unemployment insurance is also possible without trade union membership. For lowincome earners, unemployment benefits can add up to 90 % of the basic net income. ____________________ 51 52

Van Aerschot, (2011) 18 J.S.S.L., 33. Ibid., 47.

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Activation in Europe

The benefits are paid for up to four years; they had been granted up to seven years still in the early 1990s. They are limited to the average income. Therefore, unemployment does not involve existential risks for low- and average-earning employees.53 Since the trade union organises unemployment insurance, it is fundamentally interested in (re-)integrating the unemployed into the labour market as quickly as possible in order to minimise the costs of social protection. In the beginning, there was an effort to activate different target groups: it initially concentrated on adolescent, sick and older jobseekers.54 Hence, after twelve months of unemployment, the unemployed person is compelled to participate in qualification and integration efforts; for young people up to 25 years this obligation already becomes effective after six months. If the unemployed person does not cooperate, the unemployment benefits are withdrawn in their entirety. Sanctions are only one means of taking action against breaches of duty. They are based on a wide range of integration measures, and are understood as a means of social inclusion and hence as a contribution to the promotion of social cohesion.55 The jobseeker must actively participate in regaining employment, and in preserving and developing the own capacity to work.56 In this respect, the jobseeker’s consultation and involvement in order to devise an integration strategy is of central importance. “Empowerment through Partnership”57 is the leading perspective.58 Based on comprehensive instruction, a strategy of integration into the labour market is developed, which is preferably geared to the job seeker’s individual needs and capabilities; the beneficiary’s active participation is considered to be a key factor of success for the effective activation. In addition, the labour authorities adopted numerous measures for the reintegration of unemployed persons. Already developed in the 1970s, a concept of educational and training offers, rehabilitation and adapted jobs for employees with health issues was devised in order to enable the jobseekers to take up employment according to their needs and capabilities. Further support measures range from targeted assistance for a change ____________________ 53 54 55 56 57 58

34

Thus the working rate among households with one unemployed person amounts to 3 % in Denmark, as against more than 44 % or 48 % in Germany and the United Kingdom: Jørgen/Jensen, in Sarfati/Bonoli, 2002, 58, 81. Kvist/Pedersen/Köhler, in Eichhorst i.a. (eds)., 2008, 221, 226. Ibid., 226. Aerschot, (2008) 15 J.S.S.L, 99. Ibid., 101. Dingeldey, 194 et seq.

United Kingdom

to self-employment via individual training plans through to public-funded qualification upgrades (sabbaticals). In particular, owing to the policy of promoting the prolongation of professional life as long as possible, employees made intensive use of this offer. The retirement age is 67 and is predicted to rise to 70 in the future. Under these circumstances, advanced training is attractive even for entrepreneurs and employees of advanced age. Further, objectively, it is at times even downright imperative under the conditions of an expanding economy and an age-related retirement of well-qualified members of the workforce. Moreover, there are periods of parental leave, for which a limited compensation of income is foreseen.

4. United Kingdom a) Lines of tradition As an influential part of the English-speaking world, the United Kingdom follows the maxims of liberal welfare states.59 For decades, these have shown lower growth rates than other OECD states, since they were less heavily damaged in the Second World War. The Thatcher and Reagan years led to far reaching reforms in such states. Their successors – namely the social democratic Labour governments under Tony Blair and Gordon Brown – built upon these reforms and further developed the earlier reforms prompted by the Conservatives by means of a “Third Way”,while adjusting them to new principles that are opposed to the conservative social policy in their foundations and objectives. The relationship between labour and welfare has always been controversial in the United Kingdom; as a result, it has repeatedly undergone a radical redetermination.60 In the 17th century, relief for the poor was termed as “work for those that will labour, punishment for those that will not, and bread for those who cannot”.61 The Scottish moral philosopher and subsequent father of the market economy, Adam Smith, opposed the labour constitution of the mercantilist economic system. It was based on the relief works organised ____________________ 59 60 61

Cf. Esping-Andersen, The three Worlds of Welfare Capitalism, 1990; Castles, in id. (ed.), Family of Nations, 1990, p. 3 et seq. Cf. for this as well as for the following Gilson, Unemployment Insurance in Great Britain, 1931, pp. 26 - 34. Himmelfarb, The idea of poverty, 1984, 27.

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by the parishes as well as on the Statute of Artificers.62 The former was restricted to the citizens of the parish and the latter provided for the annual designation of the positions to be occupied in and by the community. Smith criticised the fact that this organisation would hamper the development of the economic activity on a large-scale, national level. He laid down its principles in his writings in order to profit from the economic advantages of the division of labour within the framework of a territorial and nation state according to the market rules. However, the still existing municipal responsibility for the relief works and for the regulation of crafts would obstruct the market forces, because it tied the workers to their community of origin and prevented businesses from attracting external workers.63 In accordance with Adam Smith’s proposals, in 1795, the Act of Settlement was repealed in England and with it the parish serfdom, that is, the rules that bound the workforce to their parish of origin. From then on, for the first time, industry was able to satisfy its manpower requirements at a supra-regional level. Subsequently, industrialisation and intensive agriculture began. Meanwhile, municipal relief works for the poor were not abolished, but, on the contrary (!), were considerably enhanced. In 1795, the justices of peace of Berkshire in Speenhamland decided that every poor man capable of work, whose earnings were below the price of bread for himself and his family, might receive an allowance out of the community’s coffers up to the amount of this minimum income.64 This decision was highly contested politically. Edmund Burke65 stated that solely those unable to work, namely sick people, weak people, orphans and old people received aid, since only they would deserve their fellow’s compassion. Predominantly, however, the English communities observed the principle according to which also those capable of work could be assisted (the Speenhamland principle). For “no measure was ever more universally popular. Parents were free of the care of their children, and children were no more dependent upon parents; employers could reduce wages at will and labourers were

____________________ 62 63 64 65

36

Polanyi, The Great Transformation, 1944, German Frankfurt/Main, 1977, 124 et seq. Ibid., 127. Himmelfarb, 1984, 9, 66. Burke, in id., The Works - Twelve Volumes in Six, Vol. V/VI, 131 et seq.

United Kingdom

safe from hunger whether they were busy or slack; humanitarians applauded the measure as an act of mercy”.66 The economic consequences of this rule were disastrous, however: “Although it took some time till the self-respect of the common man sank to the low point where he preferred poor relief to wages, his wages which were subsidized from public funds were bound eventually to be bottomless, and to force him upon the rates.”67 Alexis de Tocqueville68 drew attention to the fact that England, then the economically most developed and wealthiest country69 in Europe, would also have more poor people than any other country. By the beginning of 1830, one sixth of the population had become dependent on public benefits. Robert Malthus explained the pauperisation that started in the 19th century with the incentive not to work triggered by the Speenhamland principle. Such a right of the poor had made the poor lose all sense of responsibility and discipline.70 The natural tendency of inaction71 peculiar to human beings could thus explain the fatal effects of a well-intended social principle. Karl Polanyi paraphrased this effect even more drastically: “Speenhamland was an unfailing instrument of popular demoralization. … an automaton for demolishing the standards on which any kind of society could be based. Not only did it put a premium on the shirking of work and the pretense of inadequacy, but it increased the attraction of pauperism precisely at the juncture when a man was straining to escape the fate of the destitute.”72 In a report on the Poor Law Amendment of 1834, the effect of the Speenhamland principle was described so as to dispense the great land____________________ 66 67 68

69

70 71 72

Polanyi, Karl, The Great Transformation: The Political The Political and Economic Origins of Our Time, New York 1944 (2nd Beacon Paperback edition, Boston 2001), 83/84. Ibid., 84. Tocqueville, Memoir on Pauperism, 1833; cf. for the topicality of this argument Esping-Andersen, Social foundations of postindustrial economics, 1999, p. 145: “A paradox of our times is the more that welfare states seem unsustainable, the greater are the demands for social protection”. Also verifiable through a high increase of the nominal wages; Fischer, Armut in der Geschichte, 1982, 63 et seq. Increases by 40-50 % in the first half of the 19th century, whereas the agricultural Ireland experienced a stagnation of wages in the same period. Block/Somers, Politics & Society 2003, 283, 288. Himmelfarb, 149; Fischer, 91 et seq. Polanyi, Karl, The Great Transformation: The Political The Political and Economic Origins of Our Time, New York 1944 (2nd Beacon Paperback edition, Boston 2001), 103/104.

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owners from their conventional social duties vis-à-vis the servants and maids consisting of the payment of a living wage. In contrast, the small but independent farmers had to bear the consequences of such a discharge; they were liable to a charge in the parish without being able to afford a workforce.73 Since in this system, ultimately, also the workers themselves became paupers, they abided only sluggishly and hesitantly by the employer’s orders.74 From this, the reformers concluded that the new poor laws above all had to eradicate “pauperism” at its roots. They would result from the fact that a large number of people would have permanently resigned themselves to the receipt of social benefits and would have become dependent on them.75 Accordingly, the basic problem of the poor relief developed under the Speenhamland principle was the lack of activation of those capable of work. As with its introduction in the Early Modern Age, from now on and in the future, poor relief was not to be granted for its own sake. Rather, at the same time, and above all, it was to be and become a means to strengthen and to establish a society based on labour.76 Thus, the assistance was intended to discourage the poor from rioting and hence to maintain order but also to help generate public labour. The central task was thus understood as the implementation of the employment relationship grounded in private contractual relationships. On the basis of these experiences, in its Poor Law Amendment of 1834, England excluded those poor persons capable of work from any poor relief whatsoever. From then on, only poor persons unable to work were entitled to benefits from the parish, while those capable of work were encouraged to enter the workhouse.77 The Poor Law Amendment of 1834 was meant to provide the conditions in which the poor lived with new life and energy.78 The labour provided in the workhouse was supposed to be burdensome, hard and degrading, so that those charged with it would undertake everything to avoid it. At all events, the poor relief was to be lower than the least paid work (based on a so-called “less eligibility test”).79 In this re____________________ 73 74 75 76 77 78 79

38

Polanyi, The Great Transformation, 1944, German Frankfurt/Main, 1977, 94. Ibid. Fulbrook, Administrative Justice and the Unemployed, 1978, 95. Piven/Cloward, Regulating the Poor, 1993, 1 et seq. Himmelfarb, 114. Paz-Fuchs, Welfare to Work, 2008, 85. Tennstedt, Sozialgeschichte der Sozialpolitik in Deutschland, 1981, 87.

United Kingdom

form proposal, the workhouse was thus to be instrumental in disciplining the poor and steering them towards an industrious life. The earnings from public labour were to be below the amount to be realised through private work. This is the origin of the principle that public benefits must be lower than private wages (Lohnabstandgebot).80 The driving idea behind this reform was the conception of a good society in which all are encouraged to develop their virtues through social institutions that enable everyone to advance towards individual and social perfection.81 This reform shaped the labour market as an economic and social institution. For the first time, the labour force was referred to the labour market as the only and central place to satisfy their necessities of life. Unemployment and the resulting destitution were no longer conceived as social risks, that is concerning the society, but as an individual risk. Besides this, old people’s homes emerged from the poorhouses as a specialised institution for people in need of care because of old age.82 In addition, youth welfare services, geared towards school, family care and the protection of neglected children, developed as separate branches of the English poor relief.83 The question as to whether these efforts implied the existence of an altruistic general humanitarianism cannot be clearly answered.84 Be that as it may, at the beginning of the 20th century it became clear, also in England, that the liberal spirit that inspired the Poor Law Amendment of 1834 did not adequately capture the social character of the industrial society’s poverty risks – a circumstance that necessitated further reforms. Thus, the Poor Law of 1834 broke with the practice of granting unconditional aid to those members of the poor capable of work, as established four centuries earlier. The publically granted poor relief was intended to stigmatise the poor who were able to work. The reform sprang from a liberal Tory spirit,85 which built upon an economic liberalism and combined principles of Scottish enlightened thinking and political authoritarianism. Accordingly, the progress of humankind would rest on the virtues of eagerness and assiduity. The central duty of the state would be to support and promote them. These virtues, and not the pursuit of individual happiness or striving after material goods would form the bedrock of society. ____________________ 80 81 82 83 84 85

Piven/Cloward, 33 et seq.; Offer, An Intellectual History of British Social Policy, 2006, 18. Offer, 32. Münsterberg, Das ausländische Armenwesen, 1901, 64. Münsterberg, 90 et seq.; de Swaan, In Care of the State, 1988. Page, Altruism and the British Welfare State, 1996. Offer, 2006.

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Towards the end of the 19th century, poverty research that employed statistical methods developed. It revealed the widespread poverty amongst unemployed people.86 Increasingly, it became apparent: unemployment is not the result of individual wrongdoing, but occurs because of circumstances beyond the control of the individual, especially because of cyclical fluctuations. Therefore, the state progressively assumed responsibility for the protection of employment.87 At first, public relief works were introduced, then the public labour exchange (1909) and finally the first instance of public unemployment insurance (1911).

b) Margaret Thatcher When, in 1979, the Thatcher government took office, it started by preventing the occupation of the unemployed with public labour. This was seen as “artificial”, as it was not created by the market but by the state.88 This corresponded to the neoliberal conviction that the market would always create states of equilibrium of its own accord. In case of a surplus of demand for jobs, an adjustment of the market conditions – namely wage reductions – would balance supply and demand. This would also be true with respect to the labour market if the applicable rules facilitated the market process.89 In order to ensure this, the labour law was amended, as were vocational education and the provision of employment. In 1984 the former statutory minimum wage was abolished.90 With this the state set an example of the end of a politically influenced income policy, through which the state, together with the parties to a collective agreement, aligned the wages with macroeconomic goals.91 As early as ____________________ 86 87 88

89 90 91

40

Bruns, Arbeitsförderungsrecht in Großbritannien im Vergleich zum deutschen Recht, 1996, 25 et seq. Cf. for this as for the following Gilson, pp. 39 et seq. Atkinson/Lupton, in Savage/Robins (eds.), Public Policy under Thatcher, 1990, pp. 45, 50 et seq.; Sinfield, in Zilian/Flecker (eds.), Flexibilisierung - Problem oder Lösung?, 1998, 89 et seq.; Harris, in Stendahl/Erhag/Devetzi (eds.), A European Work-First Welfare State, 2008, 49. Winyard, Steve, Low Pay, in: David S. Bell, The Conservative Government 1979 - 84, An Interim Report, London/Sydney/Dover/New Hampshire, 1985, pp. 50 et seq. Deaton, David, The Labour Market and Industrial Relations Policy of the Thatcher Government, in David S. Bell, The Conservative Government 1979 84, An Interim Report, London/Sydney/Dover/New Hampshire, 1985, pp. 33, 39. Ibid., p. 41.

United Kingdom

1983, the bodies that ensured the fairness of wages within companies (the wages councils) were dissolved. The government also dissociated itself from a tradition established in 1891 whereby public special-order contracts were only awarded to companies that complied with the minimum standards of labour law. Finally, the government halted the promotion of employers that recruited unemployed young people.92 The stated political aim at the time was to enhance the companies’ profitability through tax relief and the relaxation of labour law rules.93 In the second half of the 1970s, the Labour government still entrusted the state with securing jobs; it therefore established the public Manpower Services Commission in 1973, and urged it to secure vocational education and to provide employment.94 By contrast, the Thatcher government pursued the goal of creating sufficient job opportunities so that unemployed people would gain new opportunities to work. In line with this, the government gave special emphasis to the improvement of vocational education. “Training on the job”: professional qualification in and for a specific position was and still is very common.95 It does not involve instruction in general skills. The creation of municipal and business-oriented Training and Enterprise Councils96 was to allow the professional education of young people.97 In this way, unemployed adults were increasingly integrated into the educational process.98 So-called “job clubs” were formed; the term “club” does not have the connotation of “exclusive” but in the British tradition, implies social integration. The unemployed were able to meet in them. There, not only were the vacancies of the unemployment agency announced, but also those published in the press. Furthermore, the administration assisted the unemployed with the writing of letters of application. In addition, the labour administration paid out unemployment benefits as a compensation (Enterprise Allowance) to those unemployed persons who tried to start their own business. Between 1983 and 1992, 500,000 unemployed people availed themselves of this possibility.99 ____________________ 92 93 94 95 96 97 98 99

Winyard, in Bell, The Conservative Government 1979 – 84, 1985, pp. 49, 60. Deaton, in Bell, The Conservative Government 1979 – 84, 1985, p. 33; Department of Employment, Employment for the 1990s, London (HMSO), 1988, p. 22. Atkinson/Lupton, in Savage/Robins (eds.), Public Policy under Thatcher, 1990, 45, 50 et seq. Bruns, 121. Department of Employment 1988, p. 28 et seq. Ibid., pp. 44 et seq. Overview Bruns, 110 et seq. Bruns, 125.

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For unemployed illiterates, programmes were established under the title “Basic skills at work” in order to give them an understanding of the basic rules of literacy and numeracy.100 A further objective was to achieve a better reconciliation of family and work life for the growing number of single mothers who had to combine their own gainful employment with family tasks.101 All in all, the labour administration also aspired to strengthen the relationship between the separate industrial branches and the Training und Enterprise Councils that developed at the local level.102 Social security financed through taxes and contributions including the employers’ contributions was primarily regarded as a strain on entrepreneurial activity.103 Consequently, income support for the unemployed was repeatedly and drastically curtailed; the “screws were put on”.104 Thus the share of the insurance benefits decreased while that of the social benefits increased. This policy led to an “erosion of the insurance principle”.105 In 1982, the income-contingent add-on benefit introduced in 1966 was discarded; in the event of unemployment, it had specifically been of benefit to the higher paid employees. Furthermore, the benefits of unemployment insurance were liable for taxation.106 A longer eligibility period for benefits in the case of unemployment impeded access to the benefits;107 with respect to the recipients of occupational pensions, a deduction of these benefits from unemployment insurance was provided for at first only for unemployed of 60 years of age and older, and was later extended to persons of 55 years of age and older.108 At the same time, the state progressively withdrew from its financing responsibility concerning unemployment insurance. While the state’s share still amounted to 18 % in 1979, it plummeted to 5 % by 1988; the rest was to be borne by the contributions. By the mid-1990s, the income support for unemployed persons totalled 23 % of the average earned income; by contrast, in the other states of the European Union a replacement ratio of about 60 % is common practice.109 ____________________ 100 101 102 103 104 105 106 107 108 109

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Rapp, 99 (1991) Employment Gazette, p. 347. Rose/Bailey, 99 (1991) Employment Gazette, p. 464. Berry-Lound/Chaplin/O’Connell, 99 (1991) Employment Gazette, p. 535. Wikeley, 16 (1989) Journal of Law and Society, p. 291. Atkinson/Micklewright, in Dilnot/Walker (eds.), The Economics of Social Security, 1989, p. 17, who speak of “Turning the screw” with good reason. Atkinson/Micklewright, p. 33. Ibid., pp. 17 et seq. Wikeley, 16 (1989) Journal of Law and Society, pp. 291, 295. Sinfield, Benefits 12 (1995), pp. 6, 8; Wikeley, 16 (1989) Journal of Law and Society, pp. 291, 295. Sinfield, Benefits 12 (1995), p. 6, 8.

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While in the late 1970s, an unemployed person only had to accept work that was personally suited to him, he has had to take on every available job since the early 1980s.110 The requirements for jobseekers were raised as well: for the first time, numerous and extensive reporting duties and accountability were created for the beneficiary. The unemployed person had to show that he or she had been looking for a job regularly.111 Simultaneously, the disqualification periods in case of non-compliance with the obligations incumbent when looking for work and involuntary loss of employment were considerably extended. Whereas in the late 1970s the disqualification period was six weeks, it was augmented to 13 and eventually 26 weeks in the 1980s. In 1996, the traditional insurance and social benefits system in case of unemployment was replaced by the uniform Jobseeker’s Allowance.112 It eliminated the differences between unemployment insurance and unemployment assistance. The period of entitlement to the benefits was reduced from twelve to six months. A Jobseeker‘s Agreement became the foundation of the benefits. It was intended to explain the legal basis of the granting of the benefits to the unemployed person, clarifying that the sole ground for the benefits is to help him find a new job. This contract was to specify what was required of the individuals as regards job seeking. When the unemployed person did not comply with the contract, or did not follow the labour administration’s instructions, the benefits could be withdrawn for a period of two weeks. Critics pointed out that by virtue of the new regulation, the social contract as contained in the insurance relationship between the citizen and the state would be cancelled.113 A fundamental change occurred in the policy of the protection of the unemployed: compensation for job loss gave way to the incentive to find new employment.114 By and large, the 18-year long period of conservative government was characterised by the effort – which was ultimately unsuccessful – to repress the welfare state, strengthen familial and personal responsibility, and ____________________ 110 Wikeley, 16 (1989) Journal of Law and Society, pp. 291, 302. 111 Ibid., p. 296. 112 Cf. for this in detail Buck, The Social Fund, 1996; Finn, New Economy (1996), 3 (1) Spring, p. 60; Sinfield, Benefits 12 (1995), p. 6; id., in Zilian/Flecker (eds.), Flexibilisierung – Problem oder Lösung?, 1998, 89, 93 et seq; GrienbergerZingerle, Kooperative Instrumente der Arbeitsverwaltungen in England und Deutschland, 2009, 99 et seq. 113 Buck, The Social Fund, 1996, p. 154; Sinfield, in Zilian/Flecker (eds.), Flexibilisierung – Problem oder Lösung?, 1998, 89, 96 et seq. 114 Sinfield, Benefits 12 (1995), pp. 6, 10.

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extend the beneficiaries’ freedom of choice in the sense of consumer sovereignty and customer orientation. This was done with a view to countering the public monopoly on social benefits that had been hugely complacent and self-referential for a long time. Assistance for families, in particular for young people, was revoked in order to counteract an attitude based on reliance upon welfare. All in all, however, the policy did not manage to redress poverty. On the contrary, the social division of the British society was further deepened and the inequality that had existed already before was further increased.115 In particular, the social policy pursued under the banner of “targeting” (orientation of the measures towards targets), which replaced universal benefits with those tailored to the specific needs, had highly detrimental consequences for the poor and for society more generally. While this group accounted for one-tenth of the total welfare spending in 1949, their share went up to one third by 1992.116 This decisively influenced the subsequent socio-political debate. This is because savers, part-time workers as well as those that lived together with an employed partner, lost their benefits. This had immediate consequences on the beneficiaries’ mentalities and behaviour patterns. If decency, diligence, savings and one’s own efforts lead to the loss of social rights, the concern was that the beneficiaries would not act according to these values any more: such a law of social benefits would create the mental and behavioural conditions for the exit from the working society; occasionally it would even sow the seeds for a criminal way of life or one driven by alcohol and or drugs on the margins of society.117

c) New Labour When Tony Blair assumed the reins of government in 1997, politics inevitably had to take place within the framework of the previous social policy. This is because every socio-political decision continues to have an effect on the subsequent socio-political development;118 all social policy is pathdependent and bound to a path. Thus, the reforms carried out under New ____________________ 115 Glennerster, British Social Policy 1945 to the Present, 2007 (3rd edition), chap 9, 191 et seq.; Powell (ed.), New Labour, New Welfare State?, 1999, 3 et seq.; Andrews/Jacobs, Punishing the Poor, 1990; Dingeldey, 238 et seq. 116 Field, Stakeholder Welfare, 1996, 15. 117 Ibid., 18. 118 Baldwin, The Politics of Social Solidarity, 1990, 290.

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Labour built on the rules, institutions, practices and the perspectives established during the conservative period of government. They predetermined the starting point of New Labour’s social policy, namely orienting the social benefits to the attainment of specific targets and guaranteeing their economic viability.119 Nevertheless, New Labour’s social policy was not the continuation of that of the Conservatives’. In at least two respects there were substantial differences. Margaret Thatcher expressed her wholly unfathomable repulsion against any social policy through the famously provocative dictum: “there is no such thing as society” and, on the basis of this thoroughly (neo-) liberal attitude, considered every form of state activity as nothing but a nuisance that had to be combatted and repressed. By contrast, Tony Blair’s policy reversed these two maxims into their opposites: diametrically opposed to Thatcher, he emphasised the duties and rights accruing from the social ties of human beings, and also relied on the state activity which he deemed to serve the promotion and challenging of the interests of the individual. Entirely within the tradition of the “Third Way”, his credo was that economic efficiency and social justice depend upon each other.120 However, unlike Old Labour, he did not perceive state monopolies and more state expenses to be the appropriate way to achieve these goals; but rather he outlined as the “Third Way”121 an approach beyond a neoliberalism that disregarded any social policy as a matter of principle on the one hand and as orthodox state socialism on the other.122 The social policy of the Third Way propagated a new allocation of responsibilities between the state and the individual: Accordingly, it is the government’s responsibility to create employment opportunities; and it is the individual’s task to accept these as far as possible.123 Hence, New Labour’s socio-political approach has its roots in England’s traditions of social reforms in the early 20th century.124 All social policy is based on the understanding of the so____________________ 119 Harris, Editorial, (2010) 17 Journal of Social Security Law, 135 et seq. 120 Kinnock, in Andrews/Jacobs, XI; cf. also Andrews/Jacobs, 287, 292: “Once unemployment is abandoned as an objective of policy, and public services are seen as a drain on personal prosperity, social security takes on the role of a parasitical, deadening growth upon a healthy society”; but social protection is not “a drain on society but is central to its efficiency and to the strength of modern democracy” (292). 121 Blair, The Third Way, 1998; cf. for this also supra II 1 c. 122 Glennerster, 223 et seq.; more extensively Powell. 123 Department for Social Security, New Ambitions for our Country, Cm 3805, 1998, 23, 31. 124 Offer, 95 et seq.

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cial and mutual dependency of individual life courses and, in the final analysis, on the insight that destitution and pauperisation are contingent upon circumstances beyond individual control. Conversely, however, the individual is obliged to accept the assistance granted and, within this framework, to actively cooperate in order to overcome a situation of social distress. To this extent, New Labour admittedly builds on the legacies of Margaret Thatcher’s social policy; however, it does not stand for cutbacks, but rather for a realignment of social protection.125 Its goal is a new social contract – “a New Contract for Welfare”. It aims for a labour market that relies on qualified work, which should be promoted publically.126 The approach adopts communitarian arguments as developed by Amitai Etzioni.127 Participation primarily means partaking of paid employment. It appears as the reason for the solution of numerous social questions. The state fills an important and active role in reinforcing competitiveness and providing suitable work.128 It is crucial to upgrade work as against living on social benefits. Work and education emerge as the basis of all social and individual esteem.129 Unlike Old Labour, the social policy of New Labour rests on the idea of social capital. The latter explains situations of social distress and strategies aimed at overcoming them. Social capital is based on the perception that an individual’s social standing can be explained by her or his social ties. They evolve from work, leisure, family and living conditions. A just society builds bridges that include all humans (an inclusive society). To be sure, such bridges may be strengthened and supported thanks to public assistance, but the latter is neither capable of generating nor preserving them on a permanent basis. The central political ideas and concrete reform steps, which were geared towards the fight against poverty as well as towards the encouragement and enabling of social behaviour changes, are derived from these considerations.130 Within the framework of such an approach, the integration agreements (job seeker’s agreements) facilitated by the Jobseeker’s Allowance performed the function of raising awareness of personal and ____________________ 125 126 127 128 129 130

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Holden, in (2003) 1 Political Studies Review, 303, 308. Ibid., 309. Ibid., 310; cf. for this in detail infra ch. III 2 c. Ibid., 310. Ibid., 311. Harris, in (2010) 37 Journal of Law and Society, p. 233.

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family responsibility.131 Against this backdrop, one can understand the social policy’s new guiding principle that, in a nutshell, constitutes the social policy of the Third Way: “work for those who can and security to those who cannot!”132 This frames the vision of a state that is willing and able to act, a state that aims at securing the labour participation of people in need of help. In so doing, it is supported and backed by the self-determining individual who is principally interested in participation, who acts morally, and who actively takes life decisions.133 New Labour’s policy puts special emphasis on the young people’s integration into the labour market in the context of a New Deal Programme – thereby again evoking the idea of the social contract between the state and the individual.134 Moreover, a minimum wage was reintroduced and it was accompanied by newly established tax exemptions for gainful work135 with a view to making work more attractive than drawing social benefits (make work pay).136 A further essential initiative aspired to overcome child poverty. This was to be achieved through the involvement of mothers – including single mothers – in employment programmes as well as through the establishment and expansion of public childcare – something deficient in the United Kingdom.137 Reform efforts were also undertaken for protection in case of sickness and disability. They relied on the conviction that also sick and disabled persons would be capable of work and would therefore have to be enabled138 to secure employment at the earliest possible date and prevent or reduce absences from work.139 At that time, in 2007, an “Employment and Support Allowance” (ESA), which was restricted and attached to conditions, was granted for sick and disabled insured persons. The benefits serve the activation that has governed British labour market policy for a considerable time.140 The determination of the degree of physical impair____________________ 131 132 133 134 135 136 137 138

Ibid., 236. Ibid. Ibid. Ibid., 243. Lee, (2003) 10 J.S.S.L., 70. Clasen, Reforming European Welfare States. 2005, 81 et seq. Clasen, 173 et seq.; Glennerster, 239. Bonner, (2008) 15 Journal of Social Security Law (J.S.S.L.), 123, 127 et seq., 149. 139 Harris/Rahilly, in Devetzi/Stendahl (eds.), Too Sick to Work?, 2011, 43 et seq.; Bonner, (2008) 15 J.S.S.L.,123; Rahilly, (2006) 13 J.S.S.L., 191; Finn/Schulte, in Eichhorst i.a. (eds.), Bringing the Jobless into Work, 2008, 297 et seq. 140 Harris/Rahilly, in Devetzi/Stendahl (eds.), Too Sick to Work?, 2011, 44 et seq.

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ment is based upon the remaining capacity to work. In the case of drug addiction,141 a special framework for integration and therapy is in place. The conditions for an individual’s replacement are linked to his income prospects. The Welfare Reform Act 2009 conceptually implemented the New Deal strategy in the clearest manner.142 It pursues the goal of securing full employment and redressing child poverty.143 In this way, a just society is to emerge that builds on the welfare state and trusts in its effectiveness, as opposed to the Thatcher era – in which welfare counted for nothing: “A something for nothing”.144 Characterised by a “contractual” approach to welfare promotion, the attempt to facilitate draws on traditions of British social reform – namely on the conceptions of the social reformers at the beginning of the 20th century in respect of the assistance given to unemployed young people. The side effect of such a system, however, is that the social benefits system assumes a punitive character – mindful of Prime Minister Benjamin Disraeli’s bon mot expressed as early as in 1837 according to which the Poor Law Amendment of 1834 would show the world that in England poverty would be punishable.145 That is because the poor capable of work were exposed to sanctions that were close to a punishment. The new law did not change anything in this respect; on the contrary, with its orientation towards the participation in gainful employment, it deliberately carries on the tradition of the Poor Law Amendment of 1834. In the Green Paper “A new deal for welfare: Empowering people to work”146, it is stated that all people have a right to enter the labour market, and that securing this right would be a priority for the modern society. Therefore, society would have to maintain an effective system of labour exchange and integration into the labour market. Unemployment and inactivity were thus adjudged the central causes of all disadvantage and poverty. Politics would have to strive to surmount poverty traps and to avoid reliance on social benefits. The state and other social groups together would have to enable individuals to engage in gain____________________ 141 142 143 144 145

Ibid., 61 et seq. Larkin, (2011) 18 J.S.S.L., 11 et seq. Ibid., 12. Ibid., 14. Piven/Cloward, Regulating the Poor, 1993, 35 “announces to the world that in England poverty is a crime”. 146 Department for Work and Pensions, A New Deal for Welfare, January 2006, Cm 6370.

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ful employment. In particular, the government would seek to increase the employment rate to 80 % of the population capable of work; namely it would aspire to substantially reduce the number of those drawing a reduced earning capacity pension by 1 million as well as the percentage of single mothers on relief and to achieve an extension of the employment of older employed persons by a further million. Concretely, this essentially means that labour would be the solution to many social problems, from child poverty to social isolation through to depression. This is a plea of the social policy based on public morals and virtuousness, a plea that draws on the traditions of the relief works for the poor of the 19th century.147 It follows from this approach that social benefits are out of the question for the beneficiary without work, but can only be secured as a social right if established within the framework of social insurance and earned through the payment of contributions.

5. France a) Lines of tradition In France, the welfare state is regarded as “ersatz de socialisme”.148 It stands in the classical tradition of the protective state – geared to provide security to the individual in the light of economic and social insecurity. The public relief for the poor was founded by King Francis I in the 16th century.149 This was done in reaction to the uncoordinated, spontaneous allocation of assistance motivated by Christian charity, which also attracted beggars and soldiers of fortune in large numbers. The uncoordinated effort was to be replaced by a centralised poor relief programme, concentrated in the municipalities, assigning the latter responsibility for the care of the poor.150 Already in the year 806, emperor Charlemagne formulated the principle that help through work would prevent the idleness that was considered to be harmful. This principle was repeatedly confirmed in later eras;151 already in Egypt and Greece, relief works were dominated by the ____________________ 147 Larkin, (2011) 18 J. S. S. L., 11, 17. 148 Rosanvallon, La crise de l’Etat-providence, 1981, 20. 149 Mallebay du Cluseau d’Echérac, L’Assistance publique: ce qu’elle fut, ce qu’elle est, 1909, 25 et seq., 264 et seq.; Bertogne, L’administration générale de l’assistance publique à Paris, 1935, 14 et seq. 150 Piven/Cloward, Regulating the Poor, 1993, 11. 151 Bekaert, De l‘assistance par le travail, 1895, 18.

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concern that granting social benefits without return would induce those capable of work to vice and idleness.152 Under King Louis XIII in the 17th century, a Bureau des Pauvres was established as the central administration for the poor and those in need of help;153 in this context, a special ‘hospital’ (hôpital) was constructed for and ceded for use to those capable of work. However, from time immemorial, the centre of attention of the assistance granted in the hospitals was devoted to the “pauvres invalides” – the poor unable to work.154 Since the 16th century, the hospital fulfilled different tasks, namely the education, health protection and disciplining of such individuals. 155 During the French Revolution, the poor relief changed from a Christian duty to the state’s responsibility to generate public welfare and to produce social solidarity.156 The Comité de Mendicité of the National Assembly convened in 1789, which devoted itself specifically to the issue of mendicancy, thus suggesting to conceive social security as a national duty and to discharge it accordingly. With the nationalisation of church property, the hospitals formerly administrated by the churches under the influence of the state definitely devolved into the property of the French state.157 The granting of aid concentrated on the working society. In a decision of 19 March 1793, the Convention (the name of the National Assembly during the tyranny and the period of Jacobin control) found: “tout homme a droit à sa subsistance par le travail, s’il est valide, et par secours gratuits, s’il est hors de l’état de travailler”. Everyone has a right to subsistence through work if he is capable of work, and through free assistance if he is incapable of work.158 In the mid-19th century, the colonisation of Algeria and the construction of National Workshops became France’s answer to cyclical unemployment.159 This solution was preceded in the 17th century by the project of alleviating the lack of women in Canada by sending young women from France – called Filles du Roi – to Canada.160 ____________________ 152 153 154 155 156 157 158 159 160

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Mallebay du Cluseau d’Echérac, 11 et seq. Ibid., 27; Bekaert, 21. Mallebay du Cluseau d’Echérac, 262 et seq. Carricaburu/Ménoret, Sociologie de la Santé, 2004, 15. Parturier, L‘assistance à Paris sous l’Ancien Régime, 1897, 195 et seq.; Bertogne, 18 et seq. Parturier, 218. Bekaert, 19. Ibid., 19. Lanctôt, Filles de Joie ou Filles du Roi, 1952.

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b) Labour promotion Today’s system of labour promotion that has evolved since 1980 seeks to react to the solidarity crisis that emerged under the former welfare state.161 Social security releases the individual from conventional solidarity practised inter-personally. Meanwhile, under the conditions of an increasingly all-encompassing welfare state, the awareness and insight grew: in the welfare state, like in the market society, every individual would seek personal benefit and to enhance his individual profit. To be sure, a developed welfare state would not only encourage individual irresponsibility and recklessness; but it would not have the means to prevent irresponsible and reckless behaviour. Since the welfare state would directly yield all social elements, the immediate social morality and the ability to cooperate in society would come under pressure and would even be in danger of waning. However, the welfare state would strongly depend on the solidarity lived and exercised in society. The promotion of work in France is based on the right to work already formulated by Gracchus Babeuf during the French Revolution162 and in the meantime, since 1946, in any case, is anchored in section 5 of the Preamble to the French Constitution of the Fourth Republic. This guarantee is also considered binding under the present Fifth Republic.163 The human right to work aims at securing every human’s own basis of subsistence through a self-chosen job (vivre en travaillant).164 The reorientations of the labour market policy undertaken since 1980 are to be understood as a reaction to a new conception of unemployment and its causes:165 the unemployed person shall not be guided through the poverty traps planted by the social legislation itself and which would occur if taking up work was to be paid for with the loss of social security and was hence omitted. The answer was a combination of supply- and demand-oriented measures. Namely, the social protection of labour shall not be detrimental or an obstacle to an employment. Together with Belgium and the Netherlands, France presents employers that employ unemployed persons with the prospect of large-scale benefits with respect to taxes and social insurance contributions. ____________________ 161 Rosanvallon, 41 et seq. 162 Goblot, Le droit au travail, 2003, 109 et seq. 163 Borgetto, in Conac/Prétot/Teboul (eds.), Le Préambule de la Constitution de 1946, 2001, 127 et seq. 164 Ibid., 137. 165 L’Horty, Les nouvelles politiques de l’emploi, 2006, 3 et seq.

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The promotion of labour rests on an insurance system created by a collective labour agreement, and on a solidarity system that is funded by the state and through subsidy payments from the solidarity system.166 The individual instruments and targets are predetermined in the Code du Travail.167 With respect to the French social security, Robert Lafore168 distinguishes three successive models, each dedicated to different guiding principles: Accordingly, social security first had a protective, then a compensatory and today an integrating function. Traditionally it would have provided protection in case of omitted family maintenance; later –under the conditions of social protection through social insurance that rapidly and amply developed since 1945 – it would have had the role of filling the rare gaps in the lack of protection through social insurance. Today, it is designed and to be geared to integrate people into the labour market and the work-oriented society. This is achieved by an individual strategy, which retains the role of the social or labour administration in an individually negotiated strategy for each individual (Projet Personnalisé d'Accès à l'Emploi = PPAE).169 For this purpose, separate benefits were created for employed persons (Revenu Solidarité Active); it is a model of the negative income tax that, on the one hand, secures the beneficiary’s minimum subsistence level but, on the other hand, exempts additional income in large part, with a view to creating incentives to convince the workforce to apply themselves in order make a living. In this way, the poverty trap is to be overcome. A publically submitted job offer must be reasonable, in respect of the remuneration that should be paid in accordance with to the collective agreement, the position’s geographic location, the working hours and the quality requirements.170 If one of these requirements is not met, there is a legitimate ground for the rejection of the offer. Social rights are increasingly tied to the fulfilment of social duties.171 Integration agreements specify and shape the solidarity and coordinate it with the individual beneficiary’s concerns.172 However, they are limited in their possibilities and va____________________ 166 Katz (ed.), Lamy protection Sociale, 2010. 167 Hirsch et al., Code des droits contre l’exclusion, 2011, 2nd edition; Camaji, Droit social 2010, 666; Chauchard, Droit de la sécurité sociale, 2010 (5th edition), No. 667 et seq.; Dupeyroux/Borgetto/Lafore, Droit de la sécurité sociale, 2008 (16th edition), No. 1602 et seq., 1643 et seq., 1721 et seq. 168 Lafore, Revue de droit sanitaire et social 2008, 111. 169 Art. L 5411-6-1 Code du Travail; cf. also Bieback, (2009) 16 J.S.S.L., 207, 222. 170 Art. L 5412-1 Code du Travail. 171 Borgetto, Revue de droit sanitaire et social 2009, 3 et seq. 172 Ibid., 16 et seq.

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lidity by the law; in particular, they cannot disregard human rights guarantees.173

c) Consequences of the activation In immigration law,174 as in the law governing the rights of the child – as regards the concrete exercise of the parental responsibility vis-à-vis a minor child (contrat de responsabilité parentale) – there are also efforts toward integration through agreements.175 These changes in the law are guided by the idea that social benefits should above all be regarded as a springboard (plancher) for the work-oriented society.176 Correspondingly, it can be observed that a strong individualisation of the assistance has taken the place of highly specialised benefits;177 at the same time, it becomes apparent that the success of the measures is closely linked to the situation on the labour market.

6. Germany a) Belated reform on the basis of European experiences For a long time, Germany backed away from reforms of social benefits. Admittedly, in the 1980s, there were specific “austerity packages” and the health insurance also underwent occasional “structural reforms”. However, until the 1990s, the social benefits continued to expand steadily: in 1986, child-rearing periods were introduced within pension insurance and were later extended, and the statutory nursing care insurance was created. Even in the mid-1990s, “the pension” was said to be fairly “secure”. The GDR’s “accession” to the Basic Law, declared in 1990, and executed on 3 October 1990, seemed to confirm the West-German state in its socio-political path, model and approach so far. Was there a more convincing evidence of the validity of its societal approach until now than the GDR population’s uprising against Soviet-oriented state socialism and the loud call for the introduction of the Deutschmark in the GDR and subse____________________ 173 174 175 176 177

Bieback, (2009) 16 J.S.S.L., 207, 223. Lochak, Revue de droit sanitaire et social 2009, 18. Lafore, Revue de droit sanitaire et social 2009, 31. Hirsch, in Rosanvallon/Pech (eds.), La Nouvelle critique sociale, 2006, 71. Ibid., 85.

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quent reunification (“We are the people”)? From 1990, therefore, large sums of money were devoted to the “construction” of a modern economic and social structure in the “new Länder”. The GDR’s infrastructure and the building stock were in bad repair, and its companies were outdated without competition. Plant shutdowns and dismissals followed; unemployment rose quickly and on a huge scale. German reunification challenged Germany’s economic potential to the limits. To be sure, by the end of the 1990s, Germany had overcome the consequences of the separation and, furthermore, had found its new place in Europe as a unified entity for the first time. Indeed, the East-West division of the continent was a thing of the past, but the inner integration took place with less speed than implored, hoped for, or expected in 1990. In the late 1990s, the economy and society in Germany appeared to be weakened and in particular, its social benefit structures were considered outmoded and in need of reform. The newly elected federal government of autumn 1998 under Gerhard Schröder introduced reforms of the pension and health insurance in 1999. Both the OECD and the EU denounced socio-political inaction. The law would include disincentives and promote inactivity instead of gainful employment.178 Under pressure due to growing unemployment and hardening long-term unemployment, Schröder appointed a reform commission led by Peter Hartz. In 2002, it put forward numerous proposals for the further development and hence modification of labour market policy. Many of them were oriented towards the success stories of the labour market policy in the Netherlands, Denmark and the United Kingdom.179 The proposals, in which a reorientation of labour market policy with special emphasis on placement and activation and a reduction of the mere assistance of jobseekers was central, were countered with the argument that they would only deal with the better “administration of unemployment” but would not submit anything for the generation of jobs and growth. If, however, vacancies were filled quickly and adequately, then there was more to it than “administration”. Rather, the best condition for the reduction of unemployment was unlocking the production potential by filling vacancies, constituting the concrete requirement for growth. Economic and job growth can be realised by rapidly filling open positions and hence by the better placement of jobseekers; this could obviously be ____________________ 178 Ervik/Kildal/Nilssen (eds.), The Role of International Organizations in Social Policy, 2009. 179 Bundesministerium für Arbeit und Sozialordnung, Moderne Dienstleistungen am Arbeitsmarkt, 2002.

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demonstrated by the examples of Denmark, the Netherlands and the United Kingdom. The reformers presented their proposals in the proper light. There was much talk about “modernisation, improvement, further development or reorganisation”. This vocabulary expresses readiness to change, the willingness to break away from traditions and to venture into something new. In times of a widespread sense of crisis concerning the future social security, such semi-official statements were certainly applauded. The initiators of the pension, labour market and health reforms since 2000 presented them as a contribution to the “modernisation” of the country. The notion had public appeal, since the government perceived the country as “antiquated” and backward and, therefore, it was to become “more modern”. Thus the pension reform of 2000/2002 broke with the traditional conception according to which the statutory pension insurance would have the function of securing the living standard enjoyed before retirement.180 In future, this objective was only to be achieved through the interaction of public, company and private pension schemes. Therefore, the level of statutory pension insurance was reduced by modifying the indexation of pensions. In return, the development of company pension schemes was prompted through deferred compensation and by promoting the elaboration of a private pension scheme (“Riester-Rente”) by means of public grants or tax advantages. The labour market reforms formulated on the basis of the proposals by the government commission presided over by Peter Hartz181 fundamentally changed the employment promotion law. In order to predicate the protection of the unemployed on an efficient public labour exchange competing with private ones, the labour administration was to fulfil the primary function of finding placements for jobseekers instead of paying out unemployment benefits. The reform implemented by the “Healthcare Modernisation Act” (“Gesundheitsmodernisierungsgesetz”)182 intended to extend the personal contribution of the insured persons by means of a practice fee and out-ofpocket payments for pharmaceuticals. With the help of target agreements, a reduction in the use of pharmaceuticals was sought. In the law of physi____________________ 180 BT-Drs. 14/4230, 14/4636; 14/4640; cf. for this Schmähl, in Eichenhofer/Rische/Schmähl (eds.), Handbuch der gesetzlichen Rentenversicherung, 2012, ch. 6. 181 Bundesministerium für Arbeit und Sozialordnung, Moderne Dienstleistungen am Arbeitsmarkt, 2002. 182 BT-Drs. 15/1525.

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cians in free practice, new combinations of clinical and outpatient care emerged, just as the activity of physicians in free practice was altered through a conception of integrated care. On the one hand, this was supposed to increase the patients’ contribution to the financing of the healthcare benefits and, on the other hand, to avoid unnecessary repetitions of examinations – and thus inefficiency in the use of resources. The conceptual starting point of the era of reforms was marked by Gerhard Schröder’s government policy statement of 14 March 2003.183 It introduced the “Agenda 2010”. Provoked by a persistently high unemployment rate, weak growth and economic stagnation, the chancellor submitted a reform scheme that sought to attend to the structural causes of the weak growth and to improve the framework conditions for growth and employment. The government policy statement summarised the diverse changes in tax, labour and social law provided therein under the maxim: “We will have to reduce the benefits granted by the state, promote selfresponsibility and demand every one’s personal contribution”.184 The reorganisation of the welfare state and its reformation announced by these words were undeniable.185 Unemployment benefits were to be concentrated on those capable of and willing to work, and unjustified differences in the levels of assistance granted to the unemployed were to be levelled through the organisational consolidation of unemployment assistance and social benefits.186 “In future however, no one will be allowed to sit back at the expense of the community. He or she who refuses reasonable work – [and] we will change the criteria of reasonableness – will have to expect sanctions”.187

b) The labour market reform: From support to activation The reforms of the labour market broke down around a conception of unemployment that had started to take an ever-greater hold in Germany over the course of a situation of mass unemployment growing for decades from ____________________ 183 BT-Stenographische Berichte 15.WP 32. Sitzung vom 14.3.2003, 2479 (speaker: Gerhard Schröder). 184 Ibid., 2479 D. 185 Ibid., 2481 B. 186 Ibid., 2484 D. 187 Ibid., 2485 B.

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one economic cycle to another.188 Accordingly, unemployment was regarded as an individual stroke of fate. It was, however, society that had to deal with its consequences, just as and in principally the same manner as for sickness, old age and reduced earning capacity – namely in solidarity and on a permanent basis. This interpretation was buttressed further by the conception that the rights flowing from unemployment insurance would have to be understood as an asset protected as property,189 which is why their exercise would have to be fully ensured for every right holder at all costs. Against this background, the debate was fuelled as to whether an insured person that has contributed into the unemployment insurance for decades should not be entitled to unemployment benefits for a longer period than a younger person.190 This would mean that the social risks that justify the protection would have to materialise at least once within the compass of a lifetime, since otherwise the protection would not have been worthwhile. Also, as far as the protection of the long-term unemployed is concerned – those unemployed that have exhausted their insurance claims – the perception dominated that unemployment would represent an irreversible fate which social benefits would have to help render as bearable as possible. This point of view explains why the benefits were not calculated according to needs but rather in proportion to income levels. The labour market reforms overcame all of these basic assumptions.191 This was a quite a provocation. The reforms were based on the assumption that unemployment could be, if not entirely, at least frequently, redressed with the help of adequate private and public placement services. Therefore, unemployment would not constitute a fate to be endured permanently, but rather a temporary misfortune that could be overcome by the unemployed person’s own effort and specific public assistance. Their leitmotif: “Induce self-initiative, safeguard security”192 was intended to signify ____________________ 188 BT-Drs. 15/25 (Hartz I), 15/26 (Hartz II), 15/1515 (Hartz III); 15/1516 (Hartz IV); Eichhorst/Kaufmann/Konle-Seidl (eds.), Bringing the Jobless into Work? 2008; Dingeldey, 284 et seq. 189 Papier, in Ruland/Maydell/Becker, Sozialrechtshandbuch, 2012 (5th edition), section 3 recital 67; BVerfGE 72, 9; 74, 9, 25; 74, 203, 213; 92, 365, 405; Becker/Hardenberg, in Becker et al., Security: A General Principle of Social Security Law in Europe, p. 97, 107 et seq. 190 Spellbrink, JZ 2004, 538. 191 Mueller, TuP 2004, 54; Altmannn, Aktive Arbeitsmarktpolitik, 2004; Adomeit, Die Agenda 2010 und das Arbeitsrecht, 2004. 192 Bundesministerium für Arbeit und Sozialordnung, Moderne Dienstleistungen am Arbeitsmarkt, 2002.

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that tackling individual unemployment calls for an integration effort on the part of the unemployed; this effort would indeed have to be accompanied by public support measures, but ultimately its success would depend on the jobseeker’s willingness to integrate. Consequently, the placement should be regarded as the labour administration’s principal activity. Its services should therefore concentrate on assisting the jobseeker in coming through a situation to be comprehended as temporary and by no means seeking to settle for it permanently. This risk would however eventuate if the financial assistance were calculated too generously; in this case, it would remove the economic incentive to take up lower-paid jobs. Promoting and demanding (section 2 of the German Social Code, book 2 (SGB II)) became the leitmotif of the new basic security for jobseekers.193 The assistance granted represents the consideration for the beneficiary’s efforts towards the initial or repeated integration into the labour market as laid down in in the integration agreement. The jobseeker is encouraged to deploy personal efforts and to actively cooperate194 and the assistance granted is to be understood as help to self-help.195 For the members of problematic groups – the disabled, the elderly, less qualified jobseekers or those less able to withstand stress – special bridges would have to be built to enter the labour market. Contracts become new means of organisation in a law that is based on profiling and case management and which was to supersede the former authoritative, unilateral allocation of benefits; in lieu thereof, a practice of placement oriented towards reintegration was to dominate.196

c) From the safeguarding of living standards in the pension insurance towards the three-pillar model of the old age provision In the medium and in the long run, the pension reform of 2000/2002 converted the statutory pension insurance from its traditional role as the dominating, sole backbone to an element of a new architecture of old age pro____________________ 193 BSGE 96, 40; Kretschmer, DÖV 2006, 893; Martini/Schenkel, VSSR 2010, 393; Koppenfels-Spies, NZS 2010, 2; Shirvani, SGb 2010, 257; Fröhlich, Ingmar, Vertragsstrukturen in der Arbeitsverwaltung, 2007. 194 BSGE 97, 265; Soria, JZ 2005, 644; Wallerath, JZ 2008, 157. 195 BSGE 97, 271; BVerwGE 23, 149, 156; 27, 58, 63; 29, 99. 196 Ebsen, in Wulffen/Krasney, Festschrift 50 Jahre Bundessozialgericht, 2004, 725; Eichenhofer, SGb 2004, 203; Schön, SGb 2006, 290; BSGE 104, 185; 105, 297.

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vision. Among experts, it is circumscribed as the “three-pillar model” – which is grammatically not entirely unproblematic because it evokes the equality of the three pillars.197 The reform reposes on the decision to no longer base the economic protection of the individual solely on the statutory pension insurance funded by the pay-as-you-go system. Instead, there has also since then been an upward trend to induce self-provision, and to make the capital market serve the provision for old age. This decision was prompted by the aim of maintaining the long-term costs flowing from the provision for old age within reasonable limits and keeping them as controllable as possible both for private firms and for future generations. To this end, the intention was to reduce the traditionally central role of the pension insurance in order to partially shift its functions to private and company pension schemes. The reform process was initiated by the simultaneously socio- and economic-political efforts to promote employment and growth. However, it triggered a permanent process of cutting the pension level. Further reform steps increased this effect by introducing the sustainability factor that included the relationship between employed persons and beneficiaries in the assessment of the annuity rate. Hence, pensions from the statutory pension insurance would decrease substantially owing to the increase of beneficiaries on the one hand and, on the other, to the declining number of employed persons in relation to the previous legal situation to be expected for demographic reasons (decline in the birth rate). The restriction of the benefits enabled the relative lowering of the contributions to the pension insurance – there was a continuous effective lowering, and not a mere deceleration of its increase.198 In this way, the pension reform of 2000/2002 provided substantial answers to the changes to the future provision for old age accruing from the ageing of society. Therefore, it not only cured the symptoms, but claimed to meet the future socio-political challenges.

____________________ 197 Schmähl, in Eichenhofer/Rische/Schmähl (eds.), Handbuch der gesetzlichen Rentenversicherung, 2012, ch. 6. 198 Bundesministerium für Gesundheit und soziale Sicherung, Nachhaltigkeit in der Finan- zierung der Sozialen Sicherungssysteme (Bericht der RürupKommission), 2003.

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d) Healthcare reform under the banner of cost awareness, selfresponsibility and integrated care The main concern of the healthcare reform of 2004199 was to strengthen the insured persons’ cost awareness when claiming health benefits and to develop new forms of care that would allow for a better cooperation between the hospital and physicians in private practice or between the latter. Besides this, the reform relied on the power of the parties to the collective agreement to limit the costs by way of package deals. These approaches already inspired previous health care reforms and, all in all, the reform was characterised by a motive that already guided previous reforms of the health care system: to “curb” costs in the interest of affordability. In view of the challenges facing the welfare state, efficient health care systems are certainly not detrimental; however, the achievement of farreaching efficiency has not yet devised an adequate answer to the challenges triggered by ageing and medical progress. Finally, the health care reform also relied on instruments of the activating welfare state by instructing health insurance funds and associations of statutory health insurance physicians to lower the costs through target agreements. In addition, it introduced practice fees as a means to confine the recourse to medical services, ‘managed care’ as a form of cooperative coordination of different services and service providers in terms of an integrated care arrangement. A further manifestation of the activating welfare state was the concept of integration management in private firms. This was intended to moderate the implications of sickness and disability and to maintain the employment relationship for the sick or disabled person.200

e) Municipal social policy and activation The reorganisation of the welfare state was not limited to social insurance. The municipal social policy201 was subjected to this model too. Certainly, this orientation has always been immanent in municipal social policy; the ____________________ 199 Böcken/Butzlaff/Esche (eds.), Reformen im Gesundheitswesen, 2000. 200 Paridon, Betriebliches Eingliederungsmanagement und Unfallversicherung im aktivierenden Wohlfahrtsstaat, BGAG-Report 3/2009; Deinert, in Welti (ed.), Das Rehabilitationsrecht in der Praxis der Sozialleistungsträger, 2009, 47. 201 Pitschas, in von Maydell/Ruland (eds.), Sozialrechtshandbuch, 2003 (3rd edition), 1295.

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law of child and youth services (section 1 of the German Social Code, book 8 (SGB VIII))202 as well as the social benefits law (section 1, 2nd sentence of the German Social Code, book 12 (SGB XII)) have always been anxious to enable the beneficiary to engage in self-help, and the assistance always had to be oriented to this objective.203 Therefore, municipal social policy has always been characterised by individualisation, and thus by the focus on the individual beneficiaries. The assistance had to be geared to their special capabilities and to be in keeping with their needs. However, because of the changes pertaining to activation, the scope of the duties of the municipal social policy was considerably enlarged. Although the labour exchange largely devolved to the authority of the Employment Agency, and consequently the basic security benefits for jobseekers (Unemployment Benefit II, Arbeitslosengeld II) replaced the social benefits for those capable of work, the providers of the social benefits cooperate with the Employment Agency within the framework of the common institutions. In this way, municipal providers continue to participate in the assistance of individuals seeking employment. According to the German Social Code, book 12 (SGB XII), in force since 2005, activation also prevails with regard to the social benefits of those incapable of working – namely single mothers with young children. Child and youth services thus became more important. Today, the population living in poverty in Germany is essentially made up of children and single parents.204 Furthermore, the youth welfare offices (Jugendämter) received new functions in the context of public childcare. Interventions based on youth welfare law instructed the communes to expand the kindergarten and the institutions for full-day-care of school children, as well as to establish and extend the crèches. Such support was intended to go in tandem with parents’ efforts to bring up babies and infants. Greater provision of childcare will make it easier for families to combine childcare and work. Assistance to the elderly became more significant in an ageing society. The nursing services and institutions became even more important after the reform of the disability law in the German Social Code, book 9 (SGB IX). The upgrading of rehabilitation and participation also increased municipal providers’ efforts to improve care at a local level. Hence, the ____________________ 202 Münder, Familien- und Jugendhilferecht, 2000, 4th edition, 2.2.2, 4.1. 203 Münder, in Schuler-Harms (ed.), Konsensuale Handlungsformen im Sozialleistungsrecht, 2012, 71 et seq. 204 Bundesministerium für Arbeit und Sozialordnung, Lebenslagen in Deutschland, 2001.

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reorganisation of social insurance also comprised the municipal social policy. It is in their interest to keep the social insurance operational despite the necessary adjustments, thus to prevent massive cuts – in a country whose strongest legal continuity consists in its social institutions – the only thing that still links Germany to the era of Bismarck. The transition from the traditional welfare state designed for the redistribution of funds to the activating welfare state relying on services enhanced the personal intensity of municipal social policy. Childcare, debt advice services, youth work, social work and work with the elderly require qualified personnel. This does not necessarily have to be made available by municipal providers but – as is the tradition in Germany – such roles are typically fulfilled by independent providers. However, their activity is funded by the municipal providers, with the consequence that the latter must adapt themselves to increased claims on the part of the independent providers. In this context, there is surely also increasing scope for civic engagement. However, this model cannot dispense with professional guidance and stimulus. Besides, section 6 of the German Social Code, book 12 (SGB XII), not without good reason, provides for an obligation to employ learned personnel to fulfil tasks involving social security. This personnel must also sufficiently maintain and further develop its competences through advanced training measures. Therefore, municipal social policy requires an increased professionalization – as much on the part of the municipal authority as of the independent providers. This alone will increase the costs of municipal social policy. In addition, case management calls for the individualisation of the assistance. Admittedly, this promotes an objective of social work that has long been recognised. Every increase in individual care makes for a higher expenditure of time for each and everyone. If, finally, one takes into consideration that the possible applications and fields of application change and broaden given the suggested changes in the social conditions of our society, there is every indication that the personnel intensity of municipal social work will increase in quality as well as in quantity. It is in line with the tradition of municipal politics that the services characteristic of a cultured communal life – such as in municipal libraries, musical schools, swimming pools, sports facilities and cultural institutions – are regarded as a part of the infrastructure determining the community’s attractiveness. Accordingly, they are provided– in the language of French law – as universal services (service public) free of charge or for a contri62

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bution, which does not cover the costs. If the services were commercialised – that is, “sold” to the citizens for their complete counter-value – then they would lose their character as municipal services. In turn, the commune would transform into an actor on the market. Both would be incompatible with the traditional functions of municipal activity. For this reason, it is an illusion to think that in future the users of municipal facilities would be able to fully bear the counter-value of the services provided – regardless of whether one considers the case of a visit to the swimming pool or the opera house. At most, a contribution allowing for the diverging capacities of the users, such as foreseen for kindergarten fees pursuant to section 9 of the German Social Code, book 8 (SGB VIII), comes into consideration as an appropriate solution. Thereby it is difficult to draw the line between that which is economically necessary and that which is deemed acceptable in terms of social and family policy. In the socially rapidly and profoundly changing society of the future, municipal providers will carry increasing weight in terms of social policy. They are obliged to deliver a growing number of social services. At the same time, cash benefits will become less important; services, on the other hand, will gain in importance. The municipal providers will not have to realise the structural change of the welfare state alone. Rather, the change will concentrate on scope of the duties of the social insurance providers. The municipal providers, however, have their own substantial interest in attentively accompanying this change in the nature of the social insurance and in guiding it in its objectives, since the new scope of their duties is also contingent upon the success of this transformation. The municipal providers will develop new independent areas of social services in addition to the social insurance providers. As has always been the case, the task of addressing new issues, and in particular, of finding innovative solutions, will fall to them. The municipal social policy assumes the dual role of a seismograph for socio-political challenges and of a stimulator of new socio-political solutions. As a result, the social policy will remain a determining factor of municipal politics because a commune’s civility depends on its successes. Therefore, the communes must be equipped with the necessary financial means, so that they cannot merely live up to their cultural and economic duties but also to their real and substantial civilising duties. Functioning communes accomplish civility through a successful social balance, and hence establish capacity as the foundation of economic prosperity. They have always had to cater for this, and they will have to pass this test in the future as well.

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7. Activation – a fundamental feature of current social reforms Thus, the principle of activation cannot be restricted to one branch of social security benefits but may be observed almost consistently throughout social law – regardless of whether in the promotion of labour, pension policy, rehabilitation, health insurance or in companies’ integration management, in the integration of immigrants or in the provision of assistance to parents towards the fulfilment of their educational responsibilities towards babies and infants. Hence, activation is not merely one social law principle among many, but rather provides the contemporary welfare state with its central general outline, orientation and justification.205 A central feature of the welfare state’s reorganisation is the change in its instruments. If the transfer of funds took centre stage at the time when the welfare state was striving after distributional justice, today the provision of services dominates socio-political efforts: securing adequate care; “caring” for children and for elderly people who are impaired in their agency; education and apprenticeship; prevention and rehabilitation in order to prevent, overcome or cope with the need for help; – all these issues determine social policy. There is an increasing awareness that, in the long run, one cannot help the unemployed with money, but only with work. By contrast, the income risks related to old age, incapacity for work and sickness are increasingly a matter of autonomous, that is, private (law) selfprovision. Then again, this change can be explained by numerous practical reasons, starting with the shift in the sheer size, number and scale of monetary allowances, which, in relation to what had been practised before, had reached the point of simple economic impossibility. Increasingly it is understood that income risks have become controllable through private insurance law, and therefore that it is no longer necessary to bear them jointly and severally in their entirety. Consequently, a law of social benefits that is committed to the goal of securing the standard of living cannot subsist on a permanent basis. On the other hand, there is growing awareness that the solidary help of all is required to develop and preserve, or to compensate for the lack of individual agency. This is needed not only for the sake of the social inclusion of all, but also to maintain the social cohesion within a society, to protect the society from decay, disintegration and rampant lawlessness (anomy). ____________________ 205 Schuler-Harms (ed.), Konsensuale Handlungsformen im Sozialleistungsrecht, 2012.

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The transformation of the institutional orientation of social benefits from monetary benefits to services is also mirrored in the debate regarding the foundations of social justice. The conflict between egalitarianism and neoliberalism was about money – or more precisely, about the relation between social and private consumption. In its fundamental attitude, in contrast to the rival positions, communitarianism is primarily interested in the “being” rather than in the “having”,206 unlike its neoliberal opponent. Of course one can rightly argue that this makes it an easy target for criticism. The reorganisation of the welfare state marks the transition from a consumptive to an activating welfare state. This change is a reaction to the multifarious critique of the traditional welfare state. Neo-conservatives like the US-American Charles Murray 207 and the Briton Robert Skidelsky208 have criticised the traditional welfare state for its tendency to undermine self-reliance – diligence, family responsibility and forehandedness. In this way, since 1960, the relief programme developed in the USA in 1937 for mothers in need bringing up small children evolved into the “black sheep” of the US welfare state. This was seen to be the case because this programme rewarded the birth of illegitimate children, and encouraged the concealment of their fathers and the avoidance of work. If assistance for persons in need became a legal right, the work ethic would be undermined: based on the everyday experience of a youth growing up in a ghetto, there is no evidence that work in the system pays off. Robert Skidelsky generalises this critique, writing, “The welfare state has become a huge hospital which unlike an ordinary hospital creates more patients it treats”. He argues that this is because the welfare state itself makes it rational for people to become and stay poor – at someone else’s expense.209 The recipients of social benefits – in contrast to conventional conservative thinking – thus are not viewed as lazy by nature, but as adapted, coldly calculating homini oeconomici who merely exploit the possibilities created by the state itself. They do so in the knowledge that they can claim benefits, which are earmarked for inevitable emergencies, whenever things get too hard. Even within reasoning informed by humanity’s fundamental benevolence and ability to learn, the traditional welfare state has fallen into disrepute. According to Anthony Giddens, it should therefore be replaced by “positive welfare”. “The welfare state grew up as a mode of protecting – ____________________ 206 207 208 209

Fromm, Haben oder Sein, 1976. Murray, Losing Ground, 1984. Skidelsky, Beyond the Welfare State, 1997. Skidelsky, Beyond the Welfare State, 1997, p. 3.

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against misfortunes that ‘happen’ to people - certainly so far as social security is concerned – it essentially picks up pieces after mishaps have occurred. Positive welfare, by contrast, puts a much greater emphasis on the mobilising of life – political measures, aimed once more at connecting autonomy with personal and collective responsibilities.” 210 Accordingly, economic incentives to adopt desirable behaviour should take the place of social rights as absolute and vested entitlements, and social benefits should only be granted if there is a corollary obligation on the part of the individual.211 “Good government can do as much as it can to enable, but can do no more than enable.”212 Both positions consonantly oppose the consumptive welfare state in favour of the model of the activating welfare state even despite their differing points of departure, and both have been appropriately conceptually interpreted by experts such as John Rawls and Robert Nozick through to Amartya Sen and Avishai Margalit. The idea that the entitlement to a social benefit is not just something granted for which others are then charged, but is something that creates a social duty, only becomes apparent when social rights are conceived of as rights to participate and likewise are realised as elements of a social infrastructure (of “social cohesion”). The claim embodied in the social law always and necessarily has to be implemented by fellow human beings. Yet, the enabling condition also compels every single beneficiary to break away from a state of welfare dependency her- or himself and to lead as much of an autonomous life as possible. This is to be thought of as a life lived without unnecessary outside help because it can be lived in this way. The objective of social justice formulated by section 1 of the German Social Code, book 1 (SGB I), is difficult to grasp. He or she who capitulates in the face of this difficult task deserves respect for his or her intellectual integrity; still, this leaves the difficult question raised unanswered. However, one who considers the notion obsolete out of scepticism of its purported modernity has failed to recognise the importance of social justice. It is one of the most, if not the most fundamental question of every liberal legal and social order committed to the welfare state. At any rate, in Article 3(3) TEU, the EU espouses it as a guiding principle. Thus, neither the law nor the society can withhold an answer. He or she who, notwithstanding, considers the question concerning social justice to be “non____________________ 210 Giddens, Beyond Left and Right, 1994, p. 18. 211 Gilbert, Welfare Justice, 1995, 63 et seq. 212 Ibid., 151.

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legal” is, in the final analysis, led by an agnosticism of ignorance. Many normative sciences outside of the study of law have substantially contributed to the clarification of the notion – and this input is also substantial from a legal perspective, since it represents an essential contribution to the illumination of contemporary social law and of the changes it is currently undergoing.

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III.

Foundations of activation – labour and social benefits

1. Welfare state of labour The notion of ‘activation’ of social benefit recipients by social security administration highlights a fundamental question of social law: that of the relationship between labour and social benefits. Do they coexist without ever really connecting because labour and social protection are not linked or, contrarily, are they so closely linked that labour cannot be understood, or even considered, without social protection? This essential question must be kept in mind during our attempts to determine the conceptual foundations of the activating welfare state and to analyse its effects.

a) Lines of tradition Deciphering the connection between social assistance and labour uncovers a long tradition of socio-political and socio-philosophical thinking: “if any would not work, neither should he eat. For we hear that there are some which walk among you disorderly, working not at all, but are busybodies.”213 This Pauline message belongs to the Christian tradition in the same way as the postulations to love your neighbour as much as yourself214 and to help the least important of people,215 so that everyone offers each other a helping hand.216 Thus, it is work that is seen to constitute the human being just as helping one’s neighbours is given as a central purpose. The welfare state is neither a freak of history nor an elementary delusion, neither coincidence nor the late mistake of a disoriented society, but the result of a development over centuries. It harks directly back to Christian tradition and heritage. Accordingly, from time immemorial, society’s focus has been on the frailty of the human being in cases of sickness and old age. Orphans, widows, and those who were dying, sick or old were initially admitted to hos____________________ 213 214 215 216

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Paul’s Second Epistle To The Thessalonians, 3, 10 et seq. Matthew, 22, 39. Matthew, 25, 40. Galatians, 6, 2.

Welfare state of labour

pitals in medieval times. Halfway through this epoch, these institutions were increasingly controlled by the towns. They became central places of social care and, from that time, also attracted beggars and vagrants who only pretended to be in need. The abuse of benefits was an issue even back then, and at that time, the thesis emerged that the poor relief would generate the beneficiaries itself by allocating benefits, and would thus award premiums in case of abuse. Ever since then, the differentiation between ‘deserving’ and ‘nondeserving’ poor has permeated the debate on the welfare state. Inspired by Martin Luther’s 1520 claim that the prohibition of mendicancy could only succeed with the simultaneous development of a poor relief financed by the communes,217 poor relief came into being in German towns in the early modern period through a royal edict (1530, 1531). Therefore, poor relief was normally accompanied by the prohibition of mendicancy with a view to distinguishing the deserving from the non-deserving poor. Hence, the link supposedly revealed by contemporary thinkers on the welfare state - between the public’s duty to grant help to the individual in need and the individual’s duty to cooperate in return - is anything but new. It was previously formulated in 1812, in Johann Gottlieb Fichte’s “System der Rechtslehre”:218 “Nobody has a claim to the state’s assistance until he has proven that he has done everything in his power to survive and that it is impossible for him after that. Since one could not let him perish in this case either, the charge that he has not been urged to work would reflect on the state, hence the state necessarily has a right to overview how everyone would administer his property as a citizen. Just like … no poor person, so too no idler shall be in the state.” It was also clear for Georg Wilhelm Friedrich Hegel:219 “Since the civic community is obliged to support individuals, it has also the right to insist that individuals should care for its subsistence.” Thus, labour has always been the basis of social benefits. These accrue from the proceeds of human labour. They primarily secure those incapable of working. In principle, those who work have no need of social benefits but, conversely, have to generate their guarantee.

____________________ 217 Piven/Cloward, 9. 218 Fichte, System der Rechtslehre, First Book, Third Chapter. 219 Hegel, Grundlinien der Philosophie des Rechts, 1821, section 240; Hegel, Philosophy of Right, Kitchener: Batoche Books, 2001, translated by S.W. Dyde.

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Foundations of activation – labour and social benefits

b) The mission of the welfare state: securing subsistence in the workoriented society But what about the connection between labour and social benefits in specific, and today? What does labour do for the welfare state and, vice versa, what does the welfare state do for labour? The welfare state is a collective good. Its genesis and development not only facilitated the fight against poverty and the treatment of diseases through public hygiene measures and social services, but also, in the guise of general compulsory schooling, served to overcome rampant ignorance and illiteracy. For this, collective action in an organised society was necessary. The welfare state is therefore also associated with professionalisation; with an expert culture and political governing of living conditions. The actual objective of the welfare state is thus the civilisation and cultivation of all people’s living conditions.220 The welfare state has existed for centuries, with the poor relief being replaced by social insurance, and hence afforded and continues to afford its beneficiaries protection against pauperisation. However, this protection has always been limited, contingent upon and enhanced by legal requirements upon the individual in terms of the civic ideals of respectability and righteousness. In this sense, an educational element has always been inherent to the beneficent state. Therefore, the welfare state has been committed to individual reform, the enhancement of individual abilities and the deepening of individual skills and capabilities all along – and thus to the comprehensive help of self-help. As a result, the prohibition of begging was not only linked to assistance programmes from a historical point of view, but also in substance. Compulsory schooling and apprenticeship went hand in hand with social insurance; worker protection and accident insurance were closely linked. The welfare state and the educational state are siblings, as both of them relate to the work-related society. The welfare state derives its maxims and general orientations as well as its own ultimately fundamental and defining ethics from the work-oriented society. From the market economy, which developed with the French Revolution and has also comprehensively embraced human labour, a new socio-political challenge has arisen; the private law facilitating and normalising the labour market has neither aimed to solve nor is capable of dealing with it. ____________________ 220 Swaan, In The Care of the State, 1990; Hage/Hanneman/Gargan, State Responsiveness and State Activism, 1989.

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The labour market raised key questions: how is an individual, who is basically compelled to work, to assure a livelihood if she or he is sick or incapable of work because of a stroke of fate or a predisposition, or if he or she becomes sick or is rendered incapable of work in the course of this work, or independently from the course of professional life? Furthermore, with greater experience, it became apparent that the labour market does not quasi naturally push for compensation but that unemployment is actually a distinct risk of market-based production. The authors of this finding – no less eminent figures than Winston Churchill and William H. Beveridge – perceived unemployment primarily as a cyclical problem which was combined with seasonal fluctuations. It was only in the 1970s that unemployment emerged as a structural problem of an economic order in transition from an industrial to a service society. The political system reacted to this challenge particular to the market economy for the first time in the form of social insurance (1881). The dangers threatening the workforce both functionally and existentially were recognised as social risks and the protection of the working people was thus ensured.221 Since its inception it has been globally accepted: social insurance has to protect the labour force from the dangers flowing from social risks. These risks are not deemed “social” because they threaten society, but because dangers which menace the individual are borne by society. The protection afforded by social insurance was organised by public law, since the protection of those persons vulnerable to the risks of gainful work was not prescribed by private law, and nor could it have been created on a contractual basis. The attempts, rooted in the self-help tradition of the trade union movement,222 to base solidarity on voluntary action failed because of the non-professionals’ inability to permanently and reliably pursue an activity necessitating professional experience, and because of the carelessness of those without knowledge of the dangerous situation, which burdened the general public, as beneficiaries of the poor relief, in the case that the danger was realised. In the welfare state built upon social insurance, the law prevails comprehensively and consistently: “La justice d'aujourd'hui, c'est la charité d'hier”.223 The reciprocal connectedness of the society is thus founded on the belief in its cohesiveness, of something that links it, a conception of ____________________ 221 Cf. for this Stolleis, Geschichte des Sozialrechts in Deutschland, 2003; Köhler/Zacher (eds.), Beiträge zu Geschichte und aktueller Situation der Sozialversicherung, 1983. 222 Swaan, In The Care of the State, 1990, 143 et seq.; Eichenhofer, ZSR 2012, 481. 223 Baldwin, The Politics of Solidarity, 1990, 29.

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equality and belonging to a legal community that binds all members and that equally commits all those living within it to both rights and duties.224 The distinction between those unfit for work and those capable of work, which was already prevalent two centuries ago, still permeates contemporary social law. However, this distinction no longer determines the “whether”, but rather the “how” of social protection. As a consequence, there is compulsory insurance! The insurance processes the ramifications of fate and fortune, as well as unforeseeable social circumstances, and converts them into a common denominator in the form of benefits provided – thus in money, goods or services.225 With the development of the welfare state, which reveals the structures and the conflicts of modern society, society has gained an increased ability to autonomously decide on its communal life, regardless of the constraints of nature, destiny and other imponderables. The solidarity formed in the welfare state expresses the reciprocal dependency and connectedness of human beings among themselves and upon each other, without however necessarily accruing from it.

c) Work precedes social benefits: Work First Welfare State This correlation between social benefits and willingness to work becomes most apparent and marked in the field of unemployment insurance. The beneficiary can only claim it if he or she is available to the labour exchange. Benefits are available when the beneficiary is able and willing to work. Accepting offers of work is also an eligibility requirement for unemployment benefits under British law.226 There, the wage level of a position offered by the placement service is not grounds for refusal either, provided the minimum wage applies.227 Hindrances for personal reasons – including due to lack of physical or mental aptitude, but also religious prohibitions or conscientious objections – can justify a refusal to take up a job.228 Within the scope of the previous employment and remuneration, a jobseeker in the United Kingdom can decline a job offer during his or her first 13 weeks of unemployment; after that, every work is to be considered ____________________ 224 Ibid., 33. 225 Ibid., 1. 226 BSGE 58, 104, 106; 62, 166; 67, 269; 94, 19, 247; Lundy, in Harris (ed.), Social Security Law in Context, 2000, 291, 297. 227 Lundy, 298. 228 Ibid., 299.

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as broadening the jobseeker’s horizon – and should be accepted. This is an active job search which means embracing all opportunities that present themselves, but this requirement has proved hard to verify and to manage.229 Since social insurance claims to bear the social risks linked to employment systematically, full employment and social security are mutually dependent.230 Those in need of protection can only be secured on reasonable economic terms in the case of full employment; conversely, social security suffers when full employment fails to materialise. This is because all social protection has to be earned. When wage bills rise, so too does revenue from contributions. If and only if this is the case, then benefits can be raised as well. If, however, wages and contributions are stagnant, the level of social security benefits cannot be increased. Work and social protection are thus mutually dependent – both institutionally and economically. Yet, the protection that social insurance provides for employed persons is not only a burden but at the same time is often a prerequisite and condition for human labour. It is enabled by a good health care system, prenatal, maternal and childcare, protection against occupational accidents and diseases, advanced training and rehabilitation – in the form of work under humane conditions. These relieve the employer from social duties to be discharged otherwise. In that way, work and social protection depend on each other; one cannot have the former without the latter, nor the latter without the former. Hence, in a society based on liberties and individual autonomy, the welfare state has to provide its assistance first and foremost as a help to self-help: 231 “Obtaining minimal positive ranges of free choice, in which all are enabled to tend to their well-being themselves, insofar as they are in a position to do so, from a moral perspective this appears to be an equally fundamental right as that to physical integrity and certain negative liberties.”232

d) Gainful work and family responsibilities The commercial-economic perspective on social policy faces the objection that it is driven and channelled from the vantage point of a working world made up of and controlled by men, which would not be able to cater for ____________________ 229 230 231 232

Ibid., 302. Clearly worked out: Beveridge, Social Insurance and Allied Services, 1942. Tugendhat, in id., Vorlesungen über Ethik, 1993, 336, 355. Ibid., 360.

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the life courses and needs of women and mothers, especially those with little in the way of professional qualifications. This objection carries weight not least because single mothers with children have become a central group of people in need of assistance in today’s welfare states. Since childcare, help and caregiving are important tasks in mothers’ lives,233 a policy intending to comprehensively stimulate these women to engage in gainful employment would fall foul of the responsibilities accruing from their role in the family and the reality of family work. This conflict led to the provision in the Irish Constitution: “The State shall ... endeavour to secure that mothers shall not be obliged by economic necessity, to engage in labour to the neglect of their duties in the home.”234 In the form of the Lone Parent Allowance, Irish social policy concluded by acknowledging family work as such.235 The common alternatives allow for the conventional family work of raising children to be assumed by a public social service through the provision of a broad and diverse range of childcare facilities – namely through offers of care in crèches, kindergartens and after-school care centres. However, this path is restricted by numerous institutional and financial conditions. Not every family wants to avail itself of this offer, be this in order to keep following past role models about the division of tasks between men and women in marriage and professional life; be it because the ethos of care outweighs that of economic autonomy in the life design; or be it as a reaction to a social reality in which women still have less attractive, secure, sufficient and full-time employment opportunities than men and because, more often than not, the labour market affords them the prospect of part-time rather than full employment, even after parental leave. Against this background, the current call for the compatibility of work and family, which is also stipulated in Article 33 EUCFR, turns out to be a vision of a woman who is fully integrated in the labour market. She does not embody the archetype of the woman living in precarious employment – that is, of a single mother of small children relying on social assistance. Compatibility of family and work thus means fulfilling family duties under the conditions of continuing gainful employment.236 ____________________ 233 Coakley, Mothers, Welfare and Labour Market Activation, Working Paper Series 05/04, 2005. 234 Article 41(2) no. 2 of the Constitution of Ireland. 235 Coakley, Mothers, Welfare and Labour Market Acitivation, 7. 236 Riedel, in Meyer (ed.), Charta der Grundrechte der Europäischen Union, 2012 (3rd edition), Art. 33, recitals 13 et seq.

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The socio-political solution to the issue of poverty affecting children and single parents is to search for a way for single mothers to realise their family duties without giving up the perspective of permanently securing their bases of existence through gainful work instead of social benefits – just like all those capable of work in today’s welfare state.237 Therefore, the consideration shown for family issues is an acknowledgement of – coupled with great empathy for – the educational work, which is of elementary significance for the life of the society and its development. However, this recognition does not merely require that the educational work be transformed into a service for society to be facilitated publically by means of a permanent subsidisation. To this extent, the activating welfare state represents a change in view concerning the tasks of men and women in the working world: the adult worker approach, which presupposes that all adults engage in gainful work, takes the place of the old ‘breadwinner’ approach;238 the welfare state is no longer underpinned by the once prevailing ideal of male work, but is based on the ideal of a working world shaped by all adults.

e) Social promotion through labour for those able to work and protection for those unfit for work! The activation of those able to work rests upon an altered structure of social rights. The thus created social benefit claims are based on conditionality and reciprocity.239 They pursue the goal of releasing people from their dependency on social benefits.240 The current activation approaches may be traced back to the jobs report submitted by the OECD in 1994 and to the recommendations and suggestions based upon it.241 Unlike the USAmerican approaches, which rely on activation through punishment or penalisation,242 most European approaches are rather to be understood as developments of the Scandinavian approaches which are based on individual ____________________ 237 Renewed social agenda: Opportunities, access and solidarity in 21st century Europe, COM(2008) 412 final; A renewed commitment to social Europe: Reinforcing the Open Method of Coordination for Social Protection and Social Inclusion, COM(2008) 418 final. 238 Manske, Berliner Journal für Soziologie 2005, 241, 245. 239 Paz-Fuchs, Welfare to Work, 2008. 240 Ibid., 3. 241 Kenworthy, in Castles/Leibfried i.a., The Oxford Handbook of the Welfare State, 2010, 435 et seq. 242 Ibid., 438.

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promotion through social assistance and are specifically committed to social integration. They are characterised by the will to promote and develop the individual.243 Hence, activation primarily and above all means the conditionalisation of and tying of social benefits claims to the beneficiary’s own efforts in terms of work, education or training.244 In this context, conditionalisation comprises two different situations: first, that social security claims are not granted “unconditionally” but, on the contrary, only under certain conditions; furthermore, – and this is the essence of the conditionalisation requirement – the social security claim is linked to the beneficiary’s participation, which depends on her or his behaviour. Put differently, benefits are granted subject to the condition that the beneficiary indeed adopts the required behaviour. Therefore, jurists call such a right – one that hinges on the beneficiary’s behaviour – his or her “potestas”, hence a “potestative clause”. This approach is clearly developed in the proposal “A New Deal for Welfare” presented to the British House of Commons by the Department for Social Security in 1998.245 It contains all the leading maxims for the determination of the activating welfare state. Tony Blair’s preface to the document246 stressed the leading idea: since the time of William Beveridge (1942), there had been no review of the welfare state. Rather, the previous social policy had amounted to nothing more than the completion of individual modifications of many details. The traditional welfare state would however be modified, increasingly characterised by numerous social changes signifying the end of employment for life, in much the same way as traditional industrial labour declined in favour of new technologies. The change would have succeeded in countering the intensification of poverty – in particular that of children and the elderly; however, it was sometimes seen as contravening the wishes of those willing to work who would feel hindered due to perceived disincentives stemming from the welfare state itself. Finally, the welfare system would be exposed to high fraud risks that would need to be countered. In the face of these changes, it ____________________ 243 Deakin, Simon, The ‘Capability’ Concept and the Evolution of European Social Policy, in Spaventa, Eleanor/Dougan, Michael (eds.), Social Welfare and EU law, Oxford 2003, 3. 244 Dahlberg/Johansson/Moerk, On Mandatory Activation of Welfare Recipients, 2009. 245 Department for Social Security, Cm 3805, 1998. 246 Ibid., III-V.

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would be essential to spend money within the social system in the fairest and most effective manner possible. This would call for a social reform, which Tony Blair summarised as a need for a return to the fundamental questions, to ask what to expect from the welfare state. The proposal describes a Third Way, which does not reduce the services of the welfare state, or remove the safety net for people in need. Further, it does not abstain from reforms due to insufficient capacities. Rather, the model of the Third Way grounds the welfare state upon a new contract between citizen and state. In this way, it retains the traditional welfare state model, from which we all benefit, but only on the basis of certain conditions that are just and clear.247 In particular, the proposed reforms aspire a new welfare state that assists all those of working age, and encourages them to work.248 Indeed, work plays a central role in the reform programme. For those who are able to work, it is considered the safest way out of poverty.249 The suggested ‘New Deal’, a social contract, intends to develop an individualised and flexible service for those persons who left the labour market, a service that grants them tailored assistance. The reforms promise to reduce the barriers that constrain those households without any employed persons, and even of workers with limited capabilities. These barriers involve the gap in time between drawing wages and drawing social benefits, disincentives to work, which discourage people from taking up work instead of relying on social benefits, and, finally, the lack of affordable childcare. The ‘New Deal’ seeks to make work pay. It aims at improving the assistance for working families and for low-paid workers, and it seeks to alter the relationship between the government and the individual. The government has the responsibility to provide assistance, and the beneficiary has the responsibility to accept the assistance granted.250 The fact that this help is not granted without society’s participation does not originate solely in the century-long tradition of poor relief, wherein assistance was always tied to requirements as to behavioural changes on the part of beneficiaries.251 The institution of the workhouse is symbolic of this tradition: those capable of work received assistance only in exchange for public work. The situation that today the deprivation of liberty is seen as disproportionate sanction for receipt of benefits must not ____________________ 247 248 249 250 251

Ibid., V. Ibid., 2. Ibid., 3. Ibid., 3. Ibid., 67 et seq.

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lead to the misunderstanding that one could therefore expect to draw benefits without any effort in return. In English contractual thinking in particular, with its doctrine of consideration,252 it becomes clear that a contractual obligation is essentially the result of an exchange. Thus, a social benefit is a service which is exchanged for a service in return: “a something for a something”.253 In terms of social insurance, this correlation has always been apparent in the relationship between contribution and benefit; with respect to jobseekers’ assistance, this correlation finds expression in the rule that, in the case of public support, a beneficiary who is able to work must devote her or his labour capacity to the general public. This is because the non-use of productive capacity is to be conceived as denial of social welfare.254 The activating welfare thus state rests upon an overall assumption of every individual’s general social responsibility within the welfare state. Welfare to work seeks to build bridges between a state of exclusion – with social capital – and the working society that guarantees social inclusion.255 The activating state is not without side effects for the labour market: if more people are encouraged to work and the conditions to enter the labour market are opened up to a greater number of people, then this has repercussions for both wages and working conditions.256 Activation thus tends to be coupled with a more precarious situation for labour. Admittedly, activation resists the suppression of market exchange processes, which traditionally inform the welfare state through the establishment of unilateral legal rights against social benefits providers (decommodification), insofar as it calls for individuals to have a stronger market orientation. At the same time though, the concentration of the labour market and social policy on the target of comprehensive and widespread employability – to whatever extent possible - is in line with efforts to ensure the social integration of social security beneficiaries through entrusting them with gainful work, if this is possible in practice. The details of the activation approach also constitute something altogether conceptually novel.257 Reorientation through activation is captured

____________________ 252 253 254 255 256 257

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by the term “administrative recommodification”.258 The process of activation aspires to enable the beneficiary to become involved in gainful employment; it is thus intended to make decommodification obsolete. These efforts are proven to be all the more necessary as the level of social benefit rises. A rise in social benefit paid out in fact generates a disincentive to work for the recipient of social benefits.259 Hence, the approach seeks to re-establish the beneficiary as a market player through his or her qualification for and placement within the labour market.260 With this, the process of activation aims to reconstitute the elementary connection between work and the granting of social benefits that has always been the foundation of the welfare state: beneficiaries that previously strained the welfare state become service providers, who thus also support and strengthen the welfare state itself.261 In relation to the promotion of employment, the welfare state also finds itself within the tradition of John Maynard Keynes and his aspiration towards innovating production structures, as well as of Joseph Schumpeter. All in all, the state becomes the guardian of the market participation – thus, a “commodifying agent”.262 For this reason, activation stands in the context of the discussion about a good society.263 Yet, the practical effects of activation have turned out to be different for distinct social groups. The practical effects are most noteworthy as regards young people and migrants, although it does not necessarily improve their income situation. The task of social integration affects both society and every individual. Therefore, a division of tasks and mutual coordination of duties vis-à-vis each other takes place between the general public and the individual.264 Responsibility on the part of society for the individual’s integration into the labour market corresponds, conversely, to the individual’s responsibility towards society to accept help with this. The social administration and the individual do not appear as adversaries but support each other as mutually dependent partners; the beneficiary’s duty towards society accrues from and is based upon her or

____________________ 258 Holden, (2003) 1 Political Studies Review, 303, 305; Kvist, in Clasen (ed.), What Future for Social security?, 2002, 197, 201; Dingeldey, 19 et seq. 259 Kvist, in Clasen (ed.), 2002, 197, 206. 260 Ibid., 197, 206. 261 Lessenich, in Bispinck (ed.), Sozialpolitik und Sozialstaat, 2012, 41, 46. 262 Holden, (2003) 1 Political Studies Review, 303, 307. 263 Lessenich, in Bispinck (ed.), Sozialpolitik und Sozialstaat, 2012, 41, 44; Kvist, in Clasen (ed.), 2002, 197, 206: “the typical of the social democratic model”. 264 Paz-Fuchs, Welfare to Work, 2008, 6.

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his claim to benefits within the society, which grants assistance to the individual.265 However, in the last decade, activation efforts have yielded relatively scant success with regards to older employees in Great Britain.266 In addition, it has become apparent that the reintegration efforts may have succeeded in the short run, but that they have proved less and less sustainable in an increasingly flexible labour market.267 Such a social policy strives to secure the autonomy of the human being as much as to socially integrate the assistance of every individual to develop and preserve individual capabilities.268 Preventive measures and investment in human capital take the place of the compensation of losses.269 All of this happens in the hope and expectation that the assistance granted will contribute to the wellbeing of the individual so that social and economic objectives and imperatives are not in competition with each other, nor realised at each other’s expense but, quite the contrary, that such social protection is recognised as a condition for economic prosperity and, vice versa, that the latter is appreciated as a prerequisite for all social protection.

f) Basic income – an alternative? In light of the high unemployment that has existed in Europe for decades, whereby millions of people lost their jobs as a result of structural changes stemming from the move from industrial to service-based society, some considered that the time had come for society to also move on from the system of social security passed down from the industrial society. This was because the service sector failed to create a sufficiently high number of adequate jobs, but above all because the industrial workers that had become unemployed hardly engaged with the emerging service jobs or – to put it differently – because the systematic connection between full employment and social security had disintegrated. As an alternative to social security, an “unconditional” basic or minimum income for everyone was called for. Granting it “unconditionally” meant that it was to be paid not ____________________ 265 Ibid., 51. 266 Atkinson/Casebourne et al., Department for Work and Pensions Research Report No 388, 2006; Jones/Griffiths, Deparment for Work and Pensions Report No 401, 2006. 267 Carpenter, Department for Work and Pensions Research Report No 394, 2006. 268 Maydell i.a., Enabling Social Europe, 2006, 54 et seq. 269 Ibid., 73 et seq.

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only independently from income and assets but also from the beneficiary’s capacity and willingness to work.270 If, however, income is earned from work, then it shall be counted against the basic income, either comprehensively or pro rata. This claim is often justified with the argument that the working society would run out of work. Therefore, it would eventually be necessary for the state to grant a growing number of people, for whom the door to the working world of the future would remain closed due to insufficient education, an elementary and non-repressive minimum security in the form of the unconditional basic income for the sake of their human dignity. Ever since the nation state stopped being able to control both the economy and society, the traditional welfare state also became obsolete. Ulrich Beck thus formulates: “Unemployment and poverty are not the expression of defeats but victories of modern working societies.”271 As a result, society will have to answer the question: “How can one lead a meaningful life – without wage labour? How does a human become a confident citizen without wage labour? … We need an unconditional basic income of 700 €. … For if such a basic income secures the standard of living, neither social insurance funds, nor unemployment benefits, no pension system nor child allowances are needed and neither the countless benefits and subsidies that are presently distributed in a non-selective way. … Thus: no more full employment – we have better things to do!” First of all, one has to argue against this position – outlined quite coquettishly, by the way – that it seems a classic example of a self-fulfilling prophecy. If an unconditional basic income were ever to come, poorly paid work would be economically unattractive and would therefore possibly disappear completely. For why would anyone engage in burdensome work, which is rather unpopular, held in low esteem and amounts to less than the social income, and whose gain would be counted against it? This work would not even become more attractive for beneficiaries if their wages were to rise, however, as it would still be counted against the basic income. The beneficiaries would thus be caught in the often-described poverty trap, since they would be dependent on social benefits on a permanent basis, as every increase in income or assets would lead to a reduction in benefits. ____________________ 270 Cf. Vobruba, Alternativen zur Vollbeschäftigung, 2000; Van Parijs, Revue Futuribles, No. 184, 1994, 5; Euzéby, Le Revenu Minimum Garanti, 1991. 271 For this and for the following Beck, Neue Zürcher Zeitung 257/2006, p. 25; critically Eichenhofer, APuZ 51-52/2007, 19 et seq.

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Indeed, society would run out of labour in case of an unconditional basic income – admittedly, only because work became economically and socially unattractive precisely through the imperative social transfer. The premise of the approach would thus only be true in case of its realisation. If, however, wages were not credited, labour would be utterly devalued. Besides, wages of €700 a month would be below the poverty level272 – hence hardly to be considered as securing the standard of living. Precisely because of this, other social security benefits are necessary. In opposition to the basic income, these are not allocated in a non-selective way but only when and not until a social risk has materialised. The basic income might very well implement – to a greater extent than required – the right to social welfare (Article 25 UDHR); but it is not a substitute for the right to social security (Article 22 UDHR). The latter is necessary because the creation of value is based on human labour, which, in return, requires guarantees in the form of social security. Against this backdrop, a basic income is primarily and above all an attempt to institutionally devalue labour. Its introduction is anything but a victory for the working society! The call for an unconditional basic income does not clash with the economic and ethical foundations of the working society based on the market principle; rather, the concept on which it is based was implemented unsuccessfully in nineteenth-century England under the rule of the Speenhamland principle as a large-scale social test and, obviously, failed miserably.273 Today, just as back then, the lesson to be learned from this can be none other than: the welfare state must not award premiums for doing nothing but exactly the opposite; that is, it must require every person capable of working to do so. Therefore, the activating welfare state is a consequence of the working society’s social benefits system; by contrast, an unconditional basic income seeks to realise protection and security beyond the working society. However, this proposal does not have a concrete place in society – thus it is nothing but utopian. If social benefits are granted in the event of hardship or due to the realisation of social risks, then social policy has to ensure that possible distresses are prevented at all costs, or that they are overcome as quickly as ____________________ 272 In Austria, €726 was fixed as the basic security rate for poor people in 2008; also in Germany, Hartz IV-beneficiaries receive more than the standard rate of €382, namely for housing costs (up to 45 square metres at a rate of €5-8 per square metre for singles) and the absorption of health and nursing care insurance contributions. 273 Cf. for this supra ch. II 4 a), p. 35.

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possible after they have occurred. In the long run, unemployed, sick and disabled persons should not be assisted primarily through social benefits, but should be enabled to re-enter working life as early and comprehensively as possible. In future, the welfare state has to focus on those services geared towards rehabilitation and reintegration. The previous, consumptive form of welfare state concentrated on the permanent assistance of the people concerned. An activating welfare state, on the other hand, strives to achieve the complete, swift and permanent reintegration of those affected by a risk into the working society. The reduction in the number of social security cases, as with the number of persons entitled to social benefits, is in line with the general conception of an activating, investing or providing welfare state. A social policy which assumes that the labour market is in principle receptive to all that are physically able to work, and therefore aims to promote employment and gives priority to such a policy, presents a fundamental alternative to the former approach which has ultimately been defeated in the face of mass unemployment. This social policy echoes the efforts of the German labour market reforms in 2003 and 2004 and the corresponding initiatives in the Netherlands, Denmark and the United Kingdom in the last decades. Indeed, with such efforts, “our welfare state is redefined”.274 Those that have studied social history would add that these efforts aiming to promote employment raise new public awareness for a motive that has ultimately guided the welfare state during its whole existence. For in the legal and social order, everyone capable of work is advised to secure his or her living through work. Only those who are not able to work for individual and objective reasons are and should be supported by social benefits. If labour feeds the beneficiary as much as public social benefits, it is not just a dictate of financial intelligence, but also of respect for the welfare recipient, to grant assistance that enhances her or his selfesteem.275 Or, to put it differently: “Supporting the unemployed is a lot, but work would be more.”276 Hence, the promotion of employment not only has to shape the whole economic life of a society but also, specifically, labour and social law. Employment means more than the creation of value and accordingly the protection of the welfare state’s economic foundation. Indeed, it also lies in the interest in the true destiny of each human being ____________________ 274 Adomeit, in Hanau/Adomeit, Arbeitsrecht, 2007 (14th edition), A, recital 27. 275 Eichenhofer, BB 2001, 1. 276 Adomeit, in Hanau/Adomeit, Arbeitsrecht, A, recital 33.

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since the Fall of Man: “By the sweat of your brow you will eat bread […]; for you were made out of dust, and unto dust you will return.”277 The differentiation between those capable and those incapable of work thus also pervades contemporary social law – as reaffirmed almost two centuries ago (1834). Yet today this distinction no longer determines the “whether”, but rather the “how” of social protection. Those able to work are chiefly assisted by social insurance and, in a subsidiary manner, by social benefits; that is, only in those emergencies during which loopholes in the working society organised in accordance with social insurance law are atypically revealed. These loopholes have to be closed by the “basic security in case of reduced capacity for work or at old age”. Compared to social benefits, social insurance provides elevated protection based on legal rights in return for a contribution to the financing of benefits. Unlike in 1834, an employee’s security does not rely solely on her or his participation in the labour market; it provides the employee with protection against social risks and in case of the realisation thereof. Work and social benefits implement social participation. The way to social security is necessarily paved by work. Both benefit employer and employee equally, which is entirely in keeping with Friedrich Schiller’s observation: “Work is the adornment of the burgher, Blessing the reward for toil”.278

2. The activation model: not neoliberal but communitarian! a) Social policy and political orientations However, no social reform has been satisfied with only technical details of its realisation and administrative implementation. Rather, every leading idea for a social reform has been confronted with the question as to how it could be classified within the prevalent conceptions of state and society. What can be said about the activating welfare state from such a perspective and investigative horizon? In inquiries into the content of the established socio-political approaches, three basic movements are usually distinguished in comparative research about the welfare state, following Esping-Andersen’s study “The Three Worlds of Welfare Capitalism”279 – namely the liberal, conservative ____________________ 277 Genesis 3, 19. 278 Friedrich Schiller, Das Lied der Glocke. 279 Id., The Three Worlds of Welfare Capitalism, 1990.

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and social democratic models. The liberal model is especially prevalent in Anglo-Saxon areas, the conservative model in Central Europe and the social democratic welfare state in Sweden and other Nordic states. This insight combines programmatic statements about social policy with which the basic assumptions of the liberal, conservative or social democratic model each shape the image of the welfare state in a different manner. Each of these basic assumptions has distinct implications for central sociopolitical ideas and institutions. For the liberal, the welfare state – just like the state in general – is indeed necessary, but is in principle an evil. Consequently, in the field of social policy, the focus must rest on those that are “truly in need”, to which it owes the basic necessities. For the rest, the welfare state should rely on the solidarity that accrues from a liberal society’s individual freedom, with minimal state restriction. For the conservative, the state is called to comprehensively regulate a society that is structured and subdivided according to merit and rank. In order to conserve the social distinctions, the social policy has to provide every individual with the protection that corresponds to her or his rank in society. In the social democratic approach, the democratic state is the instrument that must satisfy the society’s majority interests through state protection, namely to secure equal freedom for everyone and to enable everyone to exercise these liberties. This distinction also underlies the political parties. This is because the party-state emerged essentially at the same time as the socially constitutive state evolved and created political guidelines for the organisation of the market society. It would, however, be a misunderstanding to think that conservatives necessarily pursue a conservative policy, liberals a liberal policy and social democrats a social democratic policy: in fact, political history teaches us that – to simplify – “right-wing” political decisions have often been made by “left-wing” governments just as, conversely, “left-wing” political decisions have often been made by “right-wing” governments. Hence many social democratic voters turned away from Gerhard Schröder’s social democratic federal government, for instance, when he undertook the reorganisation of the German welfare state; they did not perceive this project as a genuinely socially democratic move, as remains to be shown, but as a liberal or conservative rollback. The outlined description of the welfare state models prevailing in different European regions is nevertheless not immune to the misinterpretation that the models in the mentioned groups of states - as ideal types - ac-

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tually exist. Real welfare states are typically hybrids of the three basic approaches distinguished by Esping-Andersen.280 Which of these competing ideals has been responsible for the acknowledged reforms of the past number of years in Europe? Since they all somehow envisaged a reduction in state benefits, at first glance they reveal a liberal component, as they yielded “less state”. As a consequence, their initiators were constantly accused of being infected with the demon of “neoliberalism”.281 This reproach is correct, at least insofar as every cutback made by an exuberant welfare state in danger of collapse, and thus every attempt to put a stop to such an undesirable development would result in a reduction in the total volume of social benefits. If, however, every effort to contain costs were branded as “neoliberal”, it would lose its significance. The labour market reforms were also “liberal” in a sense, since they expected insured and unemployed persons to apply for positions that became available – without showing consideration for their former professional occupations. Finally, the motive for health care reform was also liberal inasmuch as it called for greater autonomy for insured persons and a substantial deregulation in order to open more possibilities in the design of medical services. The activation model certainly leads to welfare markets in almost all social policy areas and also, in its results, targets the market as an institution that can solve social problems and does not hinder how society copes with them. But this market, for its part, is regarded as constituted by the welfare state and thereby socially enclosed, most notably when social policy fulfils its task of comprehensively protecting employees engaging in gainful activity. The ethos that governs the activating welfare state is therefore “designated as liberal-protestant, success-oriented and participatory”.282 The central idea is also described as “workfare” (Richard Nixon) as opposed to “welfare”.283 Following John Locke, it circumscribes the worker as responsible for his or her self284 and, insistently, and under penalty of denying them assistance, obliges those poor people that are capable of work to do justice to their destiny as working human beings. It is driven ____________________ 280 Eichenhofer, Geschichte des Sozialstaats in Europa, 2007, 37 et seq.; Schmidt, Der deutsche Sozialstaat, 2012, 64. 281 Brütt, Workfare, 32. 282 Lessenich, Festschrift für Bäcker, 48. 283 Brütt, Workfare als Mindestsicherung, 2011, 122. 284 Macpherson, Politische Theorie des Besitzindividualismus, 1967, 223 et seq.

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by a belief in a state capable of guiding its population,285 is to be understood as a means to reduce welfare spending286 and is occasionally criticised as a “re-education”287 or “social pedagogisation”288 attempt. Therefore, the central perspectives of the activating welfare state also have a touch of something fundamentally conservative. Indeed, they focus on the comprehensive disciplining, qualification and exploitation of the human workforce and on the reintegration of those not gainfully employed into the labour market.289 Hence, Stephan Lessenich290 clear-sightedly formulates: “In the centre of the new governmental mode, there is the tendency towards the transition from public to private security, from collective to individual risk management, from social insurance to self-provision, from state services to self-subsistence”.291 This attribute contradicts the actual objectives of liberalism and neoliberalism. For the latter, the given, fully developed welfare state has been nothing but a nuisance from the outset. Thus, the liberal version does not aim for a policy that seeks to preserve the developed welfare state by cutting it back, but for one that relies on an ultimately pre-modern welfare state in its place, which concentrates on social benefits.292 Lord Ralf Dahrendorf293 perceives the claim ‘no rights without responsibilities!’ as “a seemingly plausible, nevertheless dangerous, above all illiberal thesis. There are rights, and there are duties or responsibilities. The citizen, or the citoyen, has both. This is why a policy is destructive for freedom, which demands that unemployed people should not receive assistance, if they do not actively look for work, and, what is more, that people with disabilities and young mothers may not claim public assistance, if they do not work.” ____________________ 285 Ibid., 31. 286 Ibid., 32. 287 Dahme/Otto/Trube/Wohlfahrt, Soziale Arbeit für den aktivierenden Sozialstaat, 2003 (“Umerziehung”). 288 Opielka, Neue Praxis 33 (6), 543 (“Sozialpädagogisierung”). 289 Brütt, 2011, 69 et seq.; Koch/Kupka/Steinke, Aktivierung, Erwerbstätigkeit und Teilhabe, 2009, 81 et seq., 89 et seq. 290 Id., Die Neuerfindung des Sozialen, 2008, 77 et seq. 291 Ibid., 88 (“Im Zentrum des neuen Regierungsmodus steht der tendenzielle Übergang von der öffentlichen zur privaten Sicherheit, vom kollektiven zum individuellen Risikomanagement, von der Sozialversicherung zur Eigenvorsorge, von der Staatsversorgung zur Selbstversorgung”). 292 Ferrara/Tanner, A New Deal for Social Security, 1998. 293 Dahrendorf, Auf der Suche nach einer neuen Ordnung, 2003, 73 et seq.

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But is this argument valid in the final analysis? Against it, one can advance the consideration that the beneficiary is also always and necessarily under obligation: his or her rights are not solely contingent on the prior payment of contributions. But this does not create a unilateral right. Rather, such assistance is furthermore bound to cooperation with others in society. It is in this respect that social rights differ from the civil and political liberties adduced by Dahrendorf as yardsticks. A social right can only be obtained if the duties that are always coupled with it are fulfilled.294 Hence, social rights and duties necessarily go hand in hand with each other. The New Labour activation approach emphasises work and economic autonomy as leitmotifs; postulates a combination of private and public instruments for the establishment of social welfare; calls for measures to combat the abuse of social benefits; and indicates the beneficiaries’ own morality as a foundation - in the sense of greater responsibility for the individual and her or his family, but also greater responsibility for the overall system.295 The concept of Stakeholder Welfare – a social policy that considers every beneficiary as a participant – foresees the promotion of individual interests, which also includes the promotion of the society’s interest.296 The approach deals with the consequences of a social policy left behind by the Thatcher era which, with its orientation towards those “truly in need” in the form of means-tested social benefits, did both the poor and the wider society a disservice. Accordingly, social security is a means to promote the beneficiaries’ immediate interests.297 Social policy has to proceed from this, and face up to current living conditions; that is, to assume the widespread participation of women in the workforce298 and arrange the social benefits system according to freedom of choice and to the contribution to the social administration, in conformity with the beneficiaries’ needs as developed in the consumer society. This is what is meant by stakeholding. A stake signifies having a right to participate. According to the stakeholder concept, welfare benefits for those that are able to work are to be organised “proactively”. The administration thus has to create the conditions to encourage the ____________________ 294 Eichenhofer, Soziale Menschenrechte im Völker-, europäischen und deutschen Recht, 2012. 295 Harris, in id., Social Security Law in Context, 2000, 3, 10. 296 Ibid., 11. 297 Ibid., 9. 298 Ibid., 19 et seq.

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beneficiary to become active.299 In this way, social policy becomes the vehicle for social control, as it is capable of enabling and achieving certain behavioural patterns.300 The approach is explained by the theory of social citizenship. This theory contains the essence of the model of the British welfare state.301 Its objective is everyone’s integration into society. However, all these maxims have nothing, absolutely nothing to do with liberal political approaches. In their egalitarian-participatory orientation, they run downright contrary to conservative thinking and are therefore virtually congenial to a social democratic model. Consequently, Lessenich302 does not classify the approach that follows the idea of activation as “neoliberal”, but as “neo-social governmentality”, which associates and links personal interests to the common good uno acto. The transformation of the welfare state brought about by the activation approach thus also means a change in the state-citizen relationship, from citizen as passive consumer to citizen as active beneficiary, by way of a rather opaque and rarely penetrated mixture of pledges with liberal, conservative and social democratic aims.303 As, paradoxically, the growing individualisation of society has meant that everybody has become increasingly dependent,304 social justice, as the basis for the equality of all, stands for a guarantee of access to elementary services and security as well as for the facilitation of every individual’s self-development and personal autonomy and for overcoming unjustified inequalities.305 It is therefore not surprising that the activating welfare state qualifies as the ideal model for the transformation of the welfare state, combining liberal, conservative and social democratic approaches which are linked together and balanced. This is because, on closer consideration, the concept of the activating welfare state proves to be equally compatible with all of the welfare theories and political approaches.

____________________ 299 300 301 302 303 304

Ibid., 30 et seq. Harris, 19. Ibid., 20 et seq. Lessenich, Die Neuerfindung des Sozialen, 2008, 84. Ibid., 27. The Commission on Social Justice, in Franklin (ed.), Social Policy and Social Justice, 1998, 11, 34. 305 Ibid., 37 et seq.

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b) Activation as the lowering of social rights? The mentioned reforms are often described as the “cutting back” or even the retreat of the state. But this qualification is entirely lopsided and thus falls utterly short of their true substance. To characterise it as such would be to thoroughly misunderstand what fuels the reform, the changes it brings about and its ultimate goal. On closer inspection, it becomes evident that the pursued “retreat” of the state involves a new, heretofore unknown state intervention.306 In this way, new forms of promotion were created with the fiscal and contribution-related promotion of deferred compensation through contributions and tax relief, and subsidies for the setting up of private pension schemes. These new forms of promotion presented a burden both for the state and for social insurance providers, which had been deprived of contributory revenues due to the deferred compensation, and entailed new state responsibilities for private and company provision for old age. In these ways, a premium is awarded for the right exercise of a freedom – that is, for the establishment of pension plans that are in step with the new objective of old-age security policy. Thus, instead of imposing private or company social protection as a duty for the individual, the state relies on voluntary compliance while attaching financial incentives to the desired behaviour. The behavioural control draws on the law of subsidies rather than regulatory law. This element of state promotion is particularly developed in labour market reform. It is committed to encouraging and challenging in receipt of benefits, and thus ties public assistance to certain behavioural expectations on the part of the beneficiary (encouraging) and to the withdrawal of those benefits in case the expectations are belied (challenging). Against this background, the integration agreement for jobseekers and the different related assistance programmes are to be understood as contributions to enable the beneficiary to adopt the desired behaviour through public aids. In such constellations, the activating welfare state307 emerges as the model of a renewed welfare state.308 Here, every social right is indeed granted, but each is also linked to the expectation that it will be exercised in a certain, socially desired manner. ____________________ 306 Notably in view of “enabling” the individual or the “empowerment” thereof; cf. Eichenhofer, Geschichte des Sozialstaats in Europa, 2007, 139 et seq. 307 Jordan, The New Politics of Welfare, 1998; Gilbert, Welfare Justice, 1995. 308 Schmidt, Der deutsche Sozialstaat, 2012, 93.

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The activating welfare state functions in a manner that stays true to the dictum “no rights without responsibilities!”:309 a traditionally absolute and unilateral entitlement is transformed into a claim contingent upon the beneficiary’s participatory actions. Accordingly, the rights granted are to be understood as having been accorded in return for behaviour that is in both the beneficiary’s and society’s interest. This thinking found its way into Nordic welfare states in the 1970s and has spread across Europe from there. According to the traditional classification, it therefore has to be interpreted as a manifestation of the Nordic welfare state and thus to be ascribed to the social democratic model.

c) Communitarianism In contemporary social theory, such an approach is called “communitarian”. It is based on the idea that social rights not only entitle rights holders to the legally determined benefits but also always bind them to a behaviour that benefits society in return.310 Communitarianism originated in the early 1980s in the USA in reaction to the neoliberalism (libertarianism) that was setting the agenda at that time - not only in the academic world but also in political practice. The leading figure of communitarianism is Amitai Etzioni. 311 The efforts of communitarianism aim to achieve a “good society”.312 It is equally directed against individualism and liberal conservatism. A good society needs an order that corresponds to the moral ties between its members.313 It is furthermore governed by the conviction that rights and duties correspond to each other.314 The key document of communitarianism is “The Responsive Communitarian Platform”. It has been published under the title “Rights and Responsibilities”.315 It proceeds from the assumption that “Neither human existence nor individual liberty can be sustained for long outside the interdependent and overlapping communities to which all of us belong. Nor can ____________________ 309 Giddens, Beyond Left and Right, 1994; Sigg/Behrendt, Soziale Sicherheit im globalen Dorf, 2003. 310 Búrca/Witte, Social Rights in Europe, 2005; Langford, Social Rights Jurisprudence, 2008. 311 Etzioni, The Essential Communitarian Reader, 1998. 312 Etzioni, Die Verantwortungsgesllschaft, 1997, 28 et seq. 313 Ibid., 36. 314 Ibid., 76. 315 Etzioni, The Essential Communitarian Reader, 1998, XXV et seq.

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any community long survive unless its members dedicate some of their attention, energy, and resources to shared projects.”316 The central question of communitarianism pertains to the balance between individuals and groups, between rights and responsibilities, as well as the relationship between state, market and civil society as an ongoing process of coordination and balancing.317 Starting with the classical social ethics based on Aristotle, via the insights of the Old and New Testaments, which were developed into concrete modern-age commandments by Catholic social teachings just as by ethically-grounded and reform-minded socialism, while remaining committed to the legacy of sociological thinkers such as Ferdinand Tönnies, Emile Durkheim and Talcott Parsons, communitarianism pursues the objective of finding the balance and the medium between, respectively, social forces and the individual; community and autonomy; the common good and freedom; between individual rights and social responsibilities.318 A responsive community aims for a good, well-ordered society that seeks to carefully reconcile the common good with every individual’s autonomy and differs from social anarchy and social conformism precisely in this respect. 319 Accordingly, socially desired behaviour is to be achieved mainly by way of persuasion rather than coercion.320 Communitarianism is not illiberal, but it is directed against a neoliberalism that denies its ethical foundations, since it prioritises the maximisation of individual benefit over societal goals and values.321 For the liberalism that remains cognisant of its historical roots and driving forces is not just committed to the economic and political liberties of individuals, which it seeks to defend and secure against conservative constraints, but also, at the same time and on this basis, to social justice, the rule of law (or Rechtsstaat), and especially to the weak and oppressed. A liberalism with historical consciousness is driven by a belief in the moral equality of humans, thus by an insight into everyone’s uniqueness and distinctiveness. Hence, a true liberalism in complete accordance with communitarianism gives every person equal chances to develop their personal capabilities and to fulfil their individual life plans.322 ____________________ 316 317 318 319 320 321 322

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Ibid., XXV. Ibid., 26. Ibid., 9. Ibid., XI. Ibid., XIII. Selznick, in Etzioni, The essential Communitarian reader, 1998, 3 et seq. Ibid., 6.

The activation model: not neoliberal but communitarian!

Libertarianism as advocated by Friedrich A. von Hayek and Milton Friedman,323 for instance, would however have to be criticised for its reductiveness and simplifications. Its basic assumption, according to which the common good would be most comprehensively secured if everybody were able to pursue their personal interest as freely from social constraints as possible, would not lead to a well-ordered society. This is because such a society would not just have to protect individual interests. Its main concern would be the promotion of otherwise common and joint causes and purposes. Liberties could thus only be guaranteed within the limits of the common good and the encompassing protection of the rights of other liberty-holders. Neoliberalism would enable the exercise of freedoms of the socially powerful, the cost of which would be paid in the form of the restriction of freedoms of the socially powerless. In addition, neoliberalism– at least in its most vulgar and naïve sense that whatever anyone pleases should be permitted – would thus be devoid of any moral foundation; for this reason, it also lacks any appreciation for the insight that every liberty-holder also has a duty in view of enabling the permanent exercise of equal freedoms by everyone. The resulting commitments and obligations however would be unlikely to feature in neoliberal thinking, which would be in favour of yet another reduction.324 Neoliberalism would inevitably end up with a society of permissiveness and moral laxity, thereby destroying the foundations of freedom and would thus also undermine its own conceptual basis.325 While neoliberalism simplifies human liberty and cannot define its role within a ‘good’ society, communitarianism builds upon a liberal democracy that has become aware of its tradition: “The complex achievement of a community of autonomous equals who enjoy their protected private domains as they pursue their common purposes”.326 As a consequence, communitarianism requires that a society be oriented towards moral principles that its political system will in turn have to realise. Amitai Etzioni refers to a “moral reawakening without puritanism”.327 From the neoliberal perspective, this moralising trait is criticised as an attitude of humourless, schoolmasterly admonition in many regards reminiscent of the “socialist moral of the socialist human community” prevalent in Soviet Communism. In contemporary Germany, this critique was ____________________ 323 324 325 326 327

Spragens, in Etzioni, The essential Communitarian reader, 1998, 21 et seq. Ibid., 25 et seq. Ibid., 28. Ibid., 39. Etzioni, in Etzioni, The essential Communitarian reader, 1998, 41.

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carried to the extreme by the horrible neologism “Gutmenschen” (dogooders) – all but mindful of the Weimar poet Johann Wolfgang Goethe’s motto: “Let man be a noble creature, helpful and good!” (“Edel sei der Mensch, hilfreich und gut!”). The communitarian point of view counters this objection by arguing that compliance with the law depends decisively on the moral endorsement of the posited rules. Therefore, the morals of a society are the basis of all social cohesion.328 Moral pleas are also behaviours and not opinions or fundamental attitudes.329 And most imperatives relating to social morals – for example, pleas for cleanliness, thoughtfulness, against drugs and smoking – would also have to be well-founded and justified in that society or others would have to bear the consequences of unsocial behaviour. New Labour330 also substantially vindicated all of the causes and principles of communitarianism. This found expression in its commitment to the Third Way beyond neoliberalism and protectionist authoritarianism in the sense of Old Labour; in its policy focus on social participation and contribution (stakeholding); the emphasis on obligation as a prerequisite and giving something back for social benefits; the combating of social disintegration, fraud, inactivity and idleness; and the praise of all attitudes opposed to the latter, such as integrity and activeness. The connection between morally grounded and socio-politically motivated intervention becomes directly visible and obvious in Tony Blair’s affirmation in favour of “tackling crime and the causes of crime”.331 This is the communitarian approach at its finest! This idea has long been familiar to social insurance, since from its inception it has been based on the nexus between compulsory contributions and social benefits claimed in the context of a constituted community of solidarity. Communitarian approaches are only novel in view of the change that the beneficiary has to make, in addition to the payment of contributions, by cooperating in overcoming her or his hardship, and thus having to provide something else in return. Visibly, the reforms do not contain a conservative element; at most, they call upon the work ethic. ____________________ 328 Ibid., 42 et seq.: “The first and most important foundation for the reconstruction of the moral order of a community is the informal support that members accord to values they adhere to .... the social glue helps the moral order together”. 329 Ibid., 43. 330 Hale, Blair`s Community, 2006. The author seeks to demonstrate in her dissertation that New Labour’s policy is not pervaded by communitarian spirit but rather only resorts to communitarian terminology. 331 Ibid., 4 et seq.

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Yet, this plea is not conservative but is a basic part of the welfare state - of any orientation. However, the reforms apply within the framework of a welfare state model that, on the whole, is shaped by the conservative approach. The pension reform will contribute particularly to the reinforcing of the conservative approach in German policy relating to provision for old age, since the transformation of old-age security into a three-pillar model has the potential to result in strong variation in both rank and status. All in all, it is noteworthy at least that the EU-influenced employment policy and policy concerning provision for old age, with respect to pension and labour market reforms,332 identified not only the targets but also central elements of the measures taken as good practice and recommended that the Member States follow these as examples – indeed, strongly encouraged them to do so. On the basis of jointly formulated European points of view and guidelines, and implementing efforts initiated by EU law, measures committed to the activating welfare state are taken to overcome the crisis of the welfare state and the challenges thus triggered.333 Yet, this attitude was and is not foreign to the welfare state but, on the contrary, is part of its very fabric.

3. Reorganisation of the welfare state through dealing with social benefit cases a) Reorganisation of the welfare state through a requirement for cooperation on the part of the beneficiary All post-industrial societies in the EU are facing unprecedented challenges.334 Never before there have been as many elderly people as there are today. All signs indicate that this development will continue into the future; today the fastest-growing group of people in society are in their 80s. At ____________________ 332 Altmann, Aktive Arbeitsmarktpolitik, 2004, 109 et seq., Becker/Boecken/Nußberger/ Steinmeyer (eds.), Reformen des deutschen Sozial- und Arbeitsrechts im Lichte supra- und internationaler Vorgaben, 2005. 333 European Commission, The Future Evolution of Social Protection from a LongTerm Point of View: Safe and Sustainable Pension, COM(2000) 622 final; European Commission, Social Agenda, COM(2005) 33 final; cf. Becker/Boecken/Nußberger/Steinmeyer (eds.), 2005. 334 Cf. for this subject matter in detail Hauser, in von Maydell/Ruland/Becker (eds.), Sozialrechtshandbuch, 2012 (5th edition), section 5; Eichenhofer, Sozialrecht, 2012 (8th edition), recitals 69 et seq.

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the same time, the birth rate is stagnant or even declining in most countries. Consequently, the number of young people and hence the proportion of the total population they represent decreases, with the result that the population’s average age increases. The ensuing statistical effect, that the middle-aged population group – not only statistically but also from a medical point of view – becomes younger relative to the population as a whole might be good for a bon mot on one of the milestone birthdays that come to pass in this stage of life which are usually celebrated abundantly, and for the well-wishes thereby addressed to the jubilarian. In all objectivity, however, this discovery is tinged with staleness. Technological progress enables medicine to diagnose and treat illness using therapies that were taken as miraculous as recently as decades ago. Just like in a car, spare parts can also replace original human parts. Once lethal diseases can be delayed or even cured. Technological progress has also transformed the working world, transferring simple tasks to machines, whereas humans increasingly need technological, communicative and institutional knowledge and competences in order to survive in professional life. A solid education and the ability to communicate knowledge, together with the practice of skills and learning of cooperative social behaviour are now preconditions for future success in professional life – indeed, they are requirements for any form of participation in the labour market. The demands for professional expertise in the working world of the future will be higher still. School, university and professional education have to lay the necessary foundations for this. The suggested changes challenge social legislation and the labour market most seriously. On the one hand, the growth in longevity, the improvement of medical possibilities and greater demands placed on the labour force call for the extension of social benefits; on the other hand, the number of those financing these benefits will decrease at the same time. As a result, social insurance reforms are unavoidable. Currently this process of adjustment is in full swing, essentially stimulated by the EU.335 It finds expression in the intermediate-term lowering of the pension level, the fiscal promotion of supplementary provision for old age, efforts to prolong working lifetimes and initial efforts to limit services in relation to medical, attendance and nursing care. Here, the first stages of this reorganisation become apparent. Likewise, the political system increasingly at____________________ 335 VDR, Offene Methode der Koordinierung im Bereich der Alterssicherung – Quo vadis?, 2002; Devetzi/Schmitt, DRV 2002, 234; Schulte, ZSR 2002, 1 et seq.; Eichenhofer, DRV 2004, 200.

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tends to the task of influencing social development in such a way as to prevent avoidable complications. In this context, one has to mention the efforts to extend women’s participation in the labour market. The expansion of childcare seeks to enable young families and notably young women to carry out gainful activity alongside raising their children. Related to this, attempts have also been made to enhance the labour exchange in connection with the reform of labour promotion, namely to enable and induce jobseekers to take up gainful employment.336 The reorganisation of the welfare state, which can be observed in all EU Member States, does not follow a clearly formulated plan that predetermines the different stages like a timetable. However, a similar pattern is revealed across all Member States. All over the world, it is increasingly being understood that any social insurance system will overextend itself, since it will be utterly overwhelmed, if it endeavours in future to secure the living standards of all insured persons at the level they enjoyed during their active professional life in case of old age or inability to work. It was arguably possible at a time of rapid economic (re-)development when growth rates of four and five per cent per year were common, and otherwise the pensioners’ generation would have been excluded from this development of prosperity. In the late 1950s, this could have worked out because many people were capable of work and economically active. Back then, during a distinctly less prosperous period, not only was there full employment, but even a labour deficit. Pensioners rarely retired before their 65th year and women rarely before their 60th; at the same time, the life expectancy of that generation of pensioners was only a fraction of that of today’s. This is to the extent that, for ever greater numbers of people, the process of ageing promises to lead them into a third stage of life (troisième age) which often lasts for decades; rather than a doubtful event, self-provision on the part of every individual is now required much more than ever before. The latest reforms, starting in 2000, move in this direction. The same is to be observed in the context of healthcare policy.337 These reflections call attention to a simple matter of fact which is, however, fundamental to the understanding of social insurance. It is increasingly evident that sickness and health essentially depend on the lifestyle of every individual. Health-conscious behaviour can prevent the genesis and ____________________ 336 Bundesministerium für Arbeit und Sozialordnung, Moderne Dienstleistungen am Arbeitsmarkt, 2002. 337 GVG, Offene Methode der Koordinierung im Gesundheitswesen, 2004.

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the aggravation of diseases, since these are often the consequence of unhealthy lifestyles. Finally, there is a generally increasing awareness that in benefit cases, efforts to overcome an impairment are to be preferred to the mere acceptance thereof. Apart from health care, the social benefits function as income replacement. Hence, Franz-Xaver Kaufmann rightly points to tasks which irrefutably must be assumed by the welfare state: “If we do not succeed in distributing the employment opportunities in an equitable manner, the share of those will inevitably increase that have to live on transferred income.”338 Worldwide, the reorganisation of the welfare state is determined and guided by efforts to counter the permanent claiming of social benefits or at least to reduce it, to provide incentives for an economically autonomous way of living and to offer public benefits for this purpose. These efforts aim to eliminate the “dependency mentality”. The social insurance relationship is conceived as a relation based on reciprocity. It is to be apprehended not just as an exchange of contributions for benefits, but also - and above all - as a legal relationship aiming to prevent or overcome benefit cases. Finally, we have reflected that, for quite some time now, the EU Member States have started to reform their social insurance systems according to the principle of encouraging and challenging those claiming benefits. To put it differently, they seek reorientation: from passivelyconsumptively redistributing welfare state to activating welfare state. This structural change is addressed in the attempt to tackle social problems through social work and thereby, if possible, to also solve them.339 It is social intervention under the banner of “tough love”.340 It also encompasses a return to a sense of family. In families, love would traditionally be linked with rigour. This ethos is supposed to guide the interventions of the activating welfare state as well. The approach combines individualistic and collective elements – it seeks to unite freedom and equality.341 True, it is much easier to propagate than to put into practice, since it is based on Sarastro’s ethic, which he developed in his aria in the “Magic Flute”: “Within these sacred halls

____________________ 338 Kaufmann, Herausforderungen des Sozialstaates, 1997, 91. 339 Jordan, Social Work and the Third Way, 2002. 340 The term stems from an article in the OBSERVER published on 13 June 1993 under this heading; cf. also McKeever, (2009) 16 J.S.S.L., pp. 139, 142. 341 Jordan, 2002, 43.

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Reorganisation of the welfare state through dealing with social benefit cases revenge has no place! And if a man should fall, Love leads him back to duty. Then, hand in hand with a friend, he goes, content and happy, to a better land.”

b) Activation and the right to work Contrary to German law, which has admittedly enshrined the right to freely choose a place of work in Article 12(1) of the Basic Law, but beyond that, despite some guarantees in the Constitutions of the Länder,342 does not incorporate a right to work,343 international, European and EU law provide for such a right in their human rights guarantees. These guarantees give shape to and protect all social human rights, notably the right to work, health, social care and security, housing and education,344 comprehensively.345 Article 23(1) UDHR provides: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.” Based on this, the “right of everyone to the opportunity to gain his living by work which he freely chooses or accepts” (Article 6 ICESCR) is guaranteed. Furthermore, this Covenant secures “the right of everyone to the enjoyment of just and favourable conditions of work which ensure …, Remuneration which provides all workers with … Fair wages and equal remuneration for work of equal value …, A decent living …, Safe and healthy working conditions …, Equal opportunity for everyone to be promoted in his employment …, Rest, leisure and reasonable limitation of working hours and periodic holidays” (Article 7 ICESCR). The right to work encompasses the protection

____________________ 342 Article 48 of the Constitution of Brandenburg, Article 166 of the Bavarian Constitution, Article 18 of the Constitution of Berlin, Article 28 of the Constitution of Hesse, Article 53 of the Constitution of Rhineland-Palatinate, Article 45 of the Constitution of Saarland. 343 Nebendahl, ZRP 1991, 257; Reuter, RdA 1978, 344; Schwerdtner, ZfA 1977, 47. 344 Eichenhofer, Soziale Menschenrechte im Völker-, europäischen und deutschen Recht, 2012. 345 Cf. for this comprehensively Iliopoulos-Strangas (ed.), Soziale Grundrechte in Europa nach Lissabon, 2010.

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against and in case of unemployment and requires adequate working conditions and protection against discrimination.346 The right to work has always been inherent in the Factory Act.347 The guarantee of work as a human right was continued in the discussion about social insurance, for this can only be developed under conditions of full employment. In spite of the widespread phenomenon of unemployment, labour is the foundation of the life of a working society. Only because this is the rule in society, unemployment can be recognised as a social risk and hence as the exception to the rule.348 Apart from that, it is disputed349 as to whether the guarantee of the right to work justifies a state of encompassing, all-inclusive employment for all, or whether it encourages states to create conditions that are conducive to the realisation of full employment by means of labour exchange, professional and general education, employment- and not just employee-friendly working conditions, measures for the placement and qualification of jobseekers as well as integration measures. Predominantly, the last mentioned point of view is considered appropriate, as social rights primarily oblige the availability of the means necessary to achieve the objective. Hence, some are convinced that the right to work can only be accomplished progressively and gradually. This entails an obligation to strive for this objective and to attain it step by step. These efforts found their international legal expression in the ILO Conventions No. 168 (1988) concerning Employment Promotion and Protection against Unemployment (along with ILO Recommendation No. 176 (1988)), No. 150 (1978) concerning Labour Administration (along with ILO Recommendation No. 158 (1978)) and No. 142 (1975) concerning the Development of Human Resources (along with ILO Recommendation No. 142 (1975)). In addition, there is the 1998 350 ILO Declaration on Fundamental Principles and Rights at Work;351 through the four minimum standards of “fair labour” (collective bargaining, prohibition of child labour and forced or compulsory labour as well as of discrimination) stipulated therein it is to be ensured ____________________ 346 Benedek, Understanding Human rights, 2006, pp. 271 et seq. 347 Rittich, in Barak-Erez/Gross (eds.), Exploring Social Rights, 2007, pp. 107, 133 et seq. 348 Craven, The International Covenant on Economic, Social and Cultural Rights, 1995, pp. 194 et seq. 349 Cullen, 22 (1987) Royal Institute of Philosophy Lecture Series, 165; Elster, in Gutmann, Democracy and the Welfare State, 1988, 53; Nickel, 10 (1978/1979) The Philosophical Forum, 149. 350 La Hovary Claire, Les droits fondamentaux du travail, Paris 2009. 351 Alston, in id. (ed.), Labour Rights as Human Rights, 2005, 1, 3 et seq.

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that only such fair labour which meets these requirements satisfies the right to work. The European Social Charter (ESC), which is binding for all Member States of the Council of Europe, reads: “Article 1 – The right to work. With a view to ensuring the effective exercise of the right to work, the Contracting Parties undertake: 1. to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment; 2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon”. Article 15 EUCFR grants every person a right to engage in work and Article 31(1) EUCFR stipulates: “Every worker has the right to working conditions which respect his or her health, safety and dignity.” The right to work formulated in the post-war period in times of full employment was to ensure that every person capable of work should have been able to participate in the reconstruction through work.352 Consequently, the right to work is embedded in the objective of full employment and hence in the model of all employment policy.353 It binds the state to an economic policy promoting employment, job creation, labour exchange, promotion of work and unemployment insurance;354 in short, to take all suitable and necessary measures to secure full employment.355 The international356 and European human rights declarations357 regularly combine the right to work with human rights in the workplace. From this, numerous individual labour law-related guarantees can be deduced and explained. In international law, just as in European law, human rights in the workplace and the human right to work are thus inextricably linked. It follows from Article 12(1) of the German Basic Law that every legal relationship governing an employment relationship must be based on an employment contract. In respect of the latter, Article 12(1) of the Basic Law postulates the employee’s right to freely choose her or his employer.358 Accordingly, the agreement freely concluded by the employer and ____________________ 352 353 354 355 356 357

Mikkola, Social Human Rights of Europe, 2010, 138 et seq. Ibid., 139. Ibid., 140. Ibid., 145. Article 7 ICESCR. Article 1(2), 7(1), 20 ESC, prohibition of forced, compulsory and child labour and of any discrimination. 358 Cf. in this respect and as regards the right to work: Papier, in Merten/id., Handbuch der Grundrechte, vol. II, 2006, section 30 recitals 18 et seq.

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the employee is the employment relationship’s legal basis. Therefore, the employment relationship is subject to the law of contract, which in turn is characterised by the freedom to conclude and arrange a contract and is permeated by private autonomy. The international guarantee of the right to work also targets the work freely chosen. The right to work secures everyone a realistic chance to conclude an employment contract, the guarantee of access to work for people with disabilities and freedom from discrimination, as well as the prohibition of forced and compulsory labour.359 The right to work creates neither a duty to work nor an entitlement to any, nor a concrete employment of one’s own choice. Rights enable action but do not prescribe it. The right to freedom of expression does not oblige anyone to make a statement, nor does the right to work impose a duty to work.360 Generally and simply speaking, the recognised human rights constitute elementary rights for the individual; not elementary obligations, but rather duties in relation to the exercise of rights.361 Just like Article 12(1) of the Basic Law, the internationally recognised right to work also appeals to the freedom to conclude an employment relationship. It thus builds on the freedom of contract. The right to work therefore does not signify compulsion to work but ensures employees’ private autonomy. Hence, the right to work complies with the prohibition of forced labour also inherent in Article 12(2) of the Basic Law. Consequently, slavery and other forms of forced employment – like that of a concentration camp detainee or a “foreign worker”362 – are prohibited. The right to work is thus the opposite of forced labour. It would be a clumsy misunderstanding to conceive the right to work as an entitlement to a specific job; as it is concerned with consensually established work, the purpose of the right is to allow the jobseeker an effective and realistic choice among job opportunities, which is only possible in an open, free and nondiscriminatory labour market. Such social policy is as anxious to secure human autonomy as it is to ensure the social inclusion of every individual’s help in the development and preservation of individual capabilities.363 The precautionary measures ____________________ 359 Ssenyonjo, Economic, Social and Cultural Rights in International Law, 2009, pp. 248 et seq. 360 Mundlak, in Barak-Erez/Gross, Exploring Social Rights, 2007, pp. 341, 356. 361 Ibid. 362 Ssenyonjo, Economic, Social and Cultural Rights in International Law, 2009, pp. 308 et seq. 363 Maydell i.a., Enabling Social Europe, 2006, 54 et seq.

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and investment in human capital take the place of compensation for losses,364 in the hope and expectation that the assistance granted contributes to the individual’s wellbeing. This should lead to the result that social and economic goals and imperatives are not opposed to each other, nor realised at each other’s expense but that, on the contrary, social protection is recognised as a condition for economic prosperity and the latter as a prerequisite for all social protection.

c) The right to work and cooperation duties in social law In relation to the concrete implementation of the employment of jobseekers, however, the question may arise as to whether the right to work, contrary to its aspirations, covers a right to freely choose work or whether it instead assumes a binding character for the individual. This question notably arises in the context of the promotion of labour: is the right to work compatible with a reduction or withdrawal of labour promotion benefits if a jobseeker refuses to engage in reasonable work? Does the compulsion to work prevail in this case? Does the right to work mutate into an obligation to work? This question has repeatedly been debated before different courts365 and, as a result, has always been convincingly answered in the negative. This is because the right to work is not a negative liberty of an imagined “right not to work”; consequently, it does not entail a “right to be lazy”.366 Instead, the right to work is granted under the condition that reasonable and available work is carried out. This is because it constitutes a participatory right that opens opportunities for real inclusion. But it does not entail a right to exit society. The refusal or withdrawal of labour promotion benefits on grounds of lack of cooperation does not amount to a compulsion to work since the labour administration can only propose reasonable work but may not assign it against the jobseeker’s will. The refusal of reasonable work is not in breach of a legally binding obligation, but rather a non-binding obligation.367 Instead of the application ____________________ 364 Ibid., 73 et seq. 365 ECtHR No. 30300/96, decision of 26 February 1997, Talmon v. The Netherlands; similarly the case law in the USA: William Brogan vs. San Mateo County, 901 F.2d 762 of 18 April 1990. 366 Lafargue, Das Recht auf Faulheit, 1887. 367 In general: BSGE 27, 271 concerning the legal nature of cooperation in social law: legal obligation (Pflicht) or non-binding duty (Obliegenheit)?

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of penalties, a lack of cooperation ensures the loss of entitlements. Thus, the line between rights and duties becomes blurred when social human rights are granted in the form of liberties based on solidarity benefits.368 They are of a dual nature: not only is the community obliged to take action vis-à-vis the individual but also, vice versa, the individual towards the community. Accordingly, the right to work does not find its primary expression in labour law – as the law of the workplace – rather, recognition of the right to work entails other rights, which notably become apparent in the promotion of labour. One can also show this in relation to the right to education, that the right can only be fulfilled if the beneficiary complies with the inherent duties to attend school and to participate in courses.369 All social freedoms exhibit a dual nature in that they not only bind the community vis-à-vis the individual, but also the individual vis-à-vis the community. The guarantee of a right to work is also appropriate and indicated in view of the non-monetary side effects of labour: self-fulfilment, self-esteem and access to a social environment.370 This consideration cannot be countered by the argument that labour is thereby romantically inflated. Certainly, on closer consideration, for many people work is dull, health-damaging, exhausting and inhumane.371 The right to work also includes rights within the workplace, which aim to overcome all adverse working conditions. On the other hand, in the working society, a very simple message applies, according to which those who do not have adequate work are assured of neither a sufficient livelihood nor the prospect of a successful adult life.372 Therefore, activation is not to be conceived as a restriction, but as the realisation of rights. Based on the condition that everyone of working age who is able to work and living in a country is entitled to participate in working life in order to create possibilities for securing the basis of existence inherent to the working society, the jobseeker capable of working primarily owes the society labour participation on the basis of his or her right to work. Society mainly discharges this duty to implement the right to work through its labour promotion and job placement services in such a ____________________ 368 369 370 371

Mundlak, in Barak-Erez/Gross, Exploring Social Rights, 2007, 357. Elster, in Gutmann, Democracy and the Welfare State, 1988, 53, 57. Ibid., 62. Cullen, 22 (1987) Royal Institute of Philosophy Lecture Series, 165, 172: dehumanising and alienated. 372 Nickel, 10 (1978/1979) The Philosophical Forum, 149, 168.

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way as to include the jobseeker in the labour market. Hence, activation is not a restriction of freedom but rather a realisation of freedom!

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IV.

Self-responsibility

1. Individual responsibility and solidarity obligations The activating welfare state attaches special importance to selfresponsibility within the framework of the law of social benefits. It is taken into account in the context of the financing of social security and its design. The incurrence and the volume of social benefits are determined by the beneficiary’s behaviour, whether before or after the occurrence of the benefit case. Pursuant to section 1 of the German Social Code, book 5 (SGB V), the insured person is encouraged to assume self-responsibility for her or his health; section 2 of the German Social Code, book 3 (SGB III) places self-responsibility on the jobseeker as regards reintegration into the labour market; the basic security imposes extensive reintegration charges upon the jobseeker (sections 1(2), 31, 31a, 56 et seq. of the German Social Code, book 2 (SGB II)).

a) Possibilities of demanding self-responsibility A lifestyle that is hazardous to health can be used to co-finance social security – regardless of whether through taxes or contributions. Insofar as they are generated through tax revenue, financial means from unhealthy conduct can be made available to the social security system by imposing a tax, for example on tobacco and alcohol consumption. Social benefits funded through contributions also allow this, if they are subsidised – as they regularly are – with tax revenue in order to settle the solidarity charges imposed on social security. The states have a free hand in the matter of tax collection. They can thus also generate proceeds from tobacco and alcohol taxes and use them to finance subsidies to social benefit providers. For instance, France imposed a “taxe de sécurité sociale”373 on higher percentage alcoholic beverages as an earmarked tax. This goes directly to the tax authorities of the social insurance system.374 In all social benefits ____________________ 373 Dupeyroux/Borgetto/Lafore, Droit de la sécurité sociale, 16th edition, 2008. 374 In addition, there are legal issues concerning the culpable non-management of social insurance contributions, Faude, Selbstverantwortung und Solidarverantwortung im Sozialrecht, 1983, 379 et seq.

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systems, risky or risk-increasing misconduct leads to the withholding or restriction of claimable benefits. Those that consciously and deliberately induce a benefit case375 thus forfeit their claim thereto.

b) Examples of refusals of social benefits claims In the case of work accidents, the insurer’s liability to pay compensation is excluded in many places if the personal damage results from misconduct on the part of the aggrieved party.376 If no occupational hazard of the job le risque professionnel – was to blame for causing the damage and the danger was created by the injured person him- or herself, this is not to be compensated through social benefits. For, rather than an occupational risk, a danger that the injured person him- or herself created is realised in the damage; statutory accident insurance does not compensate the latter – in contrast to the former. In case of sickness – as well as of incapacity to work due to sickness377 – in many social benefits systems the benefits are not to be paid if it appears that the insured person has deliberately inflicted the sickness on heror himself.378 In particular, injuries resulting from culpable conduct – such as participation in a brawl – are excluded from the protection of health and pension insurance. The exclusion of benefits is limited to acts of deliberate self-harm; self-endangerment, on the other hand, does not entail the exclusion of benefits, as in this case the injury merely appears possible. Survivor’s benefits are excluded if the survivor killed the insured person intentionally.379 ____________________ 375 For a development of the example of contracting AIDS: Brocke, in Gallwas/Riedel/Schenke, Aids und Recht, 1992, 183 et seq.; Löwisch, Schünemann/Pfeiffer (eds.), Die Rechtsprobleme von AIDS, 1988, 307; Exner-Freisfeld, Soziale Absicherung bei HIV und AIDS, 2001, 2nd edition. 376 Persiani, Diritto della Previdenza Sociale, 2002, marginal number 155 et seq.; Prétot, Les grands arrêts du droit de la sécurité sociale, 1988, p. 208; Cass. 15/1/1941; Cass. Soc 13/1/1966; Tomandl, Grundriss des österreichischen Sozialrechts, 2002 (5th edition), marginal number 214: OGH SSV NF 13/42; Faude, Selbstverantwortung und Solidarverantwortung im Sozialrecht, 1983, 236 et seq. 377 Persiani, Diritto della Previdenza Sociale, 2002, marginal number 237. 378 Boecken, in Deutscher Sozialrechtsverband (ed.), Individualverantwortung im Sozialversicherungsschutz, 1997, 7, 20 et seq.; Faude, Selbstverantwortung und Solidarverantwortung im Sozialrecht, 1983, 143 et seq.; Keller, SGb 1997, 10; BGE II 5 V 133, 135; 117 V 369, 382; Rebhahn, DRdA 1997, 353. 379 Section 88 ASVG, OLG Wien SSV 13/108 (1973).

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After a disqualification period has come into effect, the benefits in case of unemployment are temporarily denied380 if the unemployed person disengaged from the employment relationship of her or his own accord, violated obligations of this employment relationship which entailed and justified the termination of the employment contract by the employer, or unfoundedly refused measures for integration into working life. This is because in order to be qualified as a benefit case, unemployment has to be involuntary. Therefore, self-induced unemployment leads to the temporary withholding of benefits.381 That which is based on the jobseeker’s own decision or on a lack of readiness to engage in gainful employment cannot be regarded as unemployment.382 The claim to unemployment benefits is then temporarily suspended. In the field of labour promotion particularly, self-responsibility has thus always been of central importance.383 According to section 2 of the German Social Code, book 3 (SGB III), unemployed persons are obliged to cooperate in order to overcome their own state of unemployment.384 The empowerment of the unemployed to reintegrate into working life - and not his or her support for inactivity - justifies the promotion of labour.385 State indemnity for the victims of violent crime is explained by what has been, since Thomas Hobbes,386 the generally legitimising task of securing legal concord. This constitutes the state’s monopoly on the use of force, which legitimises police encroachment on those who disturb the peace, as well as the state’s penal power vis-à-vis lawbreakers. In today’s welfare state, the state’s power of repressive intervention is complemented by its obligation to compensate the victims of acts of violence through public benefits.387 While, as a rule, welfare benefits constitute reactions to market failures, the duty to pay public indemnity to the victims of violent crime accrues from state failures. However, those victims who provoked

____________________ 380 BSGE 76, 12; 93, 105; 95, 8; 104, 90; the situation in Switzerland: BGE 109 V 275, 122 V 267. 381 Wikeley/Ogus/Barendt, The Law of Social Security, 2002 (5th edition), pp. 348 et seq.; Tomandl, Grundriss des österreichischen Sozialrechts, 2002, marginal number 349. 382 Lundy, in Harris (ed.), Social Security Law in Context, 2000, pp. 291, 292. 383 Davilla, Die Eigenverantwortung im SGB III und SGB II, 2011. 384 Eichenhofer, SGb 2000, 289, 292. 385 Davilla, 2011, 39. 386 Id., Leviathan, 1651. 387 Eichenhofer, Sozialrecht, 2012 (8th edition), recitals 423 et seq.

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their injury or induced it through their own misconduct are excluded from the compensation.388 Everyone in a state of general distress is entitled to social benefits, provided no primarily liable relatives, employers, tortfeasors or providers of social security or social indemnity have an obligation to help. If the person in need of assistance is responsible for putting her- or himself into a state of distress, whether deliberately or by gross negligence, he or she is liable to reimburse the provider’s expenses once he or she has regained income or assets after overcoming the state of distress. Social benefits law has always been familiar with the notion of anti-social behaviour, which justifies the refusal of assistance or the granting of help merely on the basis of a loan.389 Those behaviours by virtue of which actors forfeit their social protection due to deliberately soliciting for benefits, thus causing the contingency, come within the ambit of this notion. Furthermore, immigrants are excluded from the scope of social benefits if they entered a state under such an obligation with the intention of receiving assistance there.390

c) Obligations to act after the contingency has materialised Self-responsibility is also engaged when the contingency has materialised. If the beneficiary refuses to be part of the community of solidarity,391 her or his claim is reduced or completely excluded. Hence, the victim of a work accident or a chronic disease is regularly encouraged to undergo surgery if and insofar as the incapacitation could be permanently overcome or interrupted in this way.392 Persons with disabilities and the unemployed are expected to take up work, apprenticeships or advanced training, or to change jobs in order to reintegrate into the labour market. Claiming

____________________ 388 Zacher, ZfS 1983, 171, 176. 389 BVerwGE 109, 331; 67, 163; 64, 318. 390 Adler, in Eichenhofer (ed.), Social Security of Migrants in the European Union of Tomorrow, 1997, 53. 391 For this extensively: sections 60-67 of the German Social Code book 1 (SGB I), in this respect Boecken, in Deutscher Sozialrechtsverband (ed.), 1997, 7, 22 et seq.; Eichenhofer, Sozialrecht, 2012 (8th edition), recital. 200; Faude, Selbstverantwortung und Solidarverantwortung im Sozialrecht, 1983, 413 et seq.; Hartwig, Die Eigenverantwortung im Versicherungsrecht, 1993; Rebhahn, DRdA 1997, 353, 356 et seq. 392 OGH SSV NF 7/78; 5/42; 4/23; 2/33.

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benefits requires that accurate statements393 are made about the contingency and that proof is furnished of its presence. As the case may be, one must produce witnesses and other means of evidence. The recognition, demand for or determination of individual responsibility is anything but foreign to the welfare state, but has been known and familiar for a long time. The actual question is thus not whether self-responsibility is to be expected and demanded within the framework of social security, but rather how it is to be established, and above all, how far it extends.394 Does the beneficiary have to undergo life-threatening surgery, to accomplish unusual or extraordinary educational performances or to provide full evidence in the case of uncertain causation? To answer this requires the challenging of assessments: the yardsticks to be used are the proportionality, reasonableness and the controllability of the risks.395 The beneficiary’s cooperation is expected regularly; refusal to cooperate is an exception to be justified and thus is only envisaged in cases of unreasonableness. This a general outline of the basic relation between rule and exception governing every law of social benefits. However, this description only provides initial guidance, given its generality and vagueness. Altogether, it thus remains rather abstract.

2. Exemption from the obligation to provide benefits in case of selfendangerment? Acts of self-endangerment pose a particular problem in relation to selfresponsibility. Indeed, public charges are occasionally imposed on such acts, the revenue from which can then contribute to social security. However, individually controllable behaviour that causes or extends the contingency only removes the provider’s obligation to grant benefits if the insured risk was purposefully brought on by the actor: the latter must have knowledge of and also intent as to the consequences of her or his actions which are detrimental for the social benefits provider.396 Benefits are neither prescribed nor reduced in the case of an individual hazard that provokes the contingency which is neither anticipated nor aimed at by the ____________________ 393 As to the consequences of false declarations: Meyer, in Gitter/Schulin/Zacher, Festschrift für Krasney, 1997, 319. 394 OGH SSV NF 2/33; Müller, DRdA 1995, 465, 475 et seq. 395 OGH SSV NF 4/23; 6/13; 6/14; Müller, DRdA 1995, 465, 475 et seq. 396 Geschwinder, ZfS 1981, 101; cf. also Article 69 f) ILO Convention No. 102; accordingly, the benefit claim can only be prescribed in case of wilful conduct.

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beneficiary, and in the case that the administration bearing the burden of proof does not succeed in proving that the harm was deliberately selfinflicted. Consequently, the question arises: is abstract endangerment the equivalent of intentionally bringing about the contingency? And if not, could the extension of the elements leading to the prescription of benefits in case of intentional contingency to the case of self-endangerment be substantiated by way of analogy?

a) Equivalence of self-endangerment and self-destruction? Putting acts of negligent self-endangerment on an equal footing with intentional self-harm could be justified with the argument that, considering the present awareness of danger, it is clear that the person endangering him- or herself would have knowledge of the general consequences of his or her conduct, would accept them and would therefore always act at least with conditional intent.397 Since unconditional intent is equivalent to the other forms of intent, the mere fact of self-endangerment would have to be equated with intentional self-harm.398 This reasoning highlights the similarity with respect to the foreseeability of the injury and hence the cognitive element. Indeed, despite the distinctions between intentional self-harm and self-endangerment, there is no difference in the knowledge of the risk. There is a difference, however, as regards the volitional element. Whereas in the case of deliberate selfdestruction the actor desires the consequences, the person that puts her- or himself at risk holds (bearing in mind Friedrich Hölderlin’s insight: “Where there is danger, the rescue grows as well”399 ) the objectively treacherous hope that all will go well in the end. In this respect, selfdestruction and self-endangerment differ significantly. The self-destructing person is a pessimist who despises life; the selfendangering person, on the other hand, envisions her- or himself as a lifeaffirming optimist, although of course – on closer consideration – he or she is a gambler! Therefore, addiction (such as to alcohol) leading to selfendangerment is to be considered as a disease.400 Those running casinos are under a duty to intervene in cases of those with too strong a passion ____________________ 397 Geschwinder, ZfS 1981, 101; Louven, DRV 1982, 362. 398 BSGE 34, 26; Rebhahn, DRdA 1997, 353, 355. 399 Hölderlin, Patmos. Dem Landgrafen von Homburg (For the Landgrave of Homburg). Approaches to the last version. 400 BSGE 28, 114; 46, 41.

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for gambling, since this constitutes a disease if the loss sustained is too high.401 Self-endangerment is not a subset of self-destruction as the contingency is not caused individually and purposefully but is suffered; the aggrieved party is a helpless victim and not a consciously acting offender.402 From an economic perspective, the strains inflicted by selfendangerment on the community of solidarity and on social insurance greatly outweigh the damages caused by acts of intentional selfdestruction. What is self-mutilation compared to suicide committed with knife and fork, or self-flagellation in the face of creeping, continuous selfdestruction through nicotine, alcohol, cocaine and heroin? The evidence of the burden caused by the given conduct is however what makes the difference between self-endangerment and self-destruction. In relation to the withholding of benefits due to conduct such as the intentional homicide of the insured person by the beneficiary, to the disadvantage of the provider of survivor benefits, or due to punishable participation in violence,403 the prohibition of such behaviour follows directly from the penal laws. Yet, even insofar as the harm is not sanctioned through criminal law, but is even legally possible – as in the case of unemployment – and thus lawful owing to the annulment of an employment contract or its termination by notice from the employer, the strain on the community of solidarity caused by the arbitrary conduct is immediately made apparent. Regardless of whether induced by permissible or prohibited behaviour, benefits are withheld because the contingency is based on an individual choice and this has directly caused it.

b) What is the central legitimisation of the social law-related exchange of performances? The withholding of benefits or limitation thereof is not motivated by utilitarian considerations, but can be explained by the circumstance that the ____________________ 401 Süddeutsche Zeitung of 4 August 2003 “Zocker verklagt die Spielbank – und bekommt Recht” (“Gambler sues the casino – and wins the case”). 402 Brocke, in Gallwas/Riedel/Schenke, Aids und Recht, 1992, 189 et seq.; Mihm, NZS 1995, 7 et seq.; Zacher, ZfS 1983, 171, 174: “Solidarität ist nicht einseitig. Auch der Geschützte schuldet Solidarität. Subsidiarität hat Vorrang vor Solidarität.” (“Solidarity is not one-sided. The protected person owes solidarity too. Subsidiarity has priority over solidarity.”) Heinze, in Isensee (ed.), Solidarität in Knappheit, 1998, 67. 403 BSGE 34, 26.

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burden has clearly been caused by a breach of a duty on the part of the person concerned.404 The intentional, ostentatious causation of the burden405 in open defiance of recognised rules justifies every withholding or restriction of benefits, since in such cases the affected person has obviously fallen victim to their own misconduct.406 Intentional self-harm represents an abuse that discredits the social benefits system on the whole,407 and is sanctioned via the withholding of benefits precisely for this reason. Is wine consumption health-enhancing or harmful? Does sport boost wellbeing or does it encumber the community of solidarity with costs? Acts of self-endangerment are usually lacking in evidence of their public danger. Such acts frequently even conform to socio-typical behaviour. If the welfare state is financed through public charges on the consumption of tobacco and alcohol, or indeed on gambling, then gamblers, drinkers and smokers become its support. How could the welfare state deny them access to benefits in this relationship, if they need to access them due to their passion for gambling or their tobacco or alcohol consumption? When acts of self-endangerment become a source of taxation and revenue even for the funding of public welfare, self-endangerment loses its clearly and globally negative evaluation. While self-destruction is associated with a self-opinionated and provocative habitus, a self-endangering person often appears as an aboulic weakling who cannot resist the demands of society and lacks self-discipline. Finally, under the rule of law (or Rechtsstaat), it is not acceptable to extend the withholding or restriction of benefits to self-destructive behaviour by way of analogy. If social security benefits are to be granted on the basis of legal rights, then each restriction in turn requires legal legitimisation in a special legal provision, as a contrary act to the granting.408 Such provisions can be found in specific social legislation that allows for the withholding or restriction of benefits in cases of self-endangerment. In social law, as Johann Paul Anselm Feuerbach has stated,409 the principle of certainty applies to interferences with rights just like in criminal law and in ____________________ 404 BSGE 9, 232; 13, 240. 405 BSGE 21, 163. 406 Tomandl, Grundriss des österreichischen Sozialrechts, 2002, marginal number 128. 407 Wogawa, Missbrauch im Sozialstaat, 2000, 13 et seq. 408 For this issue in detail, see Müller, DRdA 1995, 465; Tomandl (ed.), Der OGH als Sozialversicherungshöchstgericht, 1994; id., SGb 1994, 405 et seq. 409 Feuerbach, Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts, 1832 (11th edition), sections 8 et seq.

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the law of the intervening administration. With respect to punishment by the state, this principle is specified in the precept: nullum crimen sine lege, nulla poena sine lege! This principle is also applicable in social law, which requires the specific enactment of a statute (Gesetzesvorbehalt; section 31 of the German Social Code, book 1 (SGB I)) because it also creates subjective rights and therefore must provide for interferences with those rights on the basis of a legal provision410 that precisely circumscribes their withholding or restriction. As is the case for criminal law, in the field of social law, the employment of an analogy to the beneficiary’s disadvantage is impossible and untenable by virtue of the rule of law (or Rechtsstaat).

c) Extension of the restriction of benefits to negligent self-endangerment? Furthermore, the issue of the sanctioning of negligent self-endangerment in case of appropriate legal basis is comprised of three dimensions: an educational, an economic and a legal one. Accepting humans as one finds them, without challenging them, means that one is not able to promote them but instead belittles them. Contemporary thinking about the welfare state is particularly premised on a similar aspiration, akin to pedagogical idealism: “The welfare state as we know it will be replaced by the enabling state, in which benefits are transformed under the better of public support for private responsibility.”411 “Good government can do as much as it can to enable, but can do no more than enable.”412 The vision of the activating, enabling welfare state thus rests on the assumption that the welfare state guides and shapes an individual’s behaviour through its institutions and that it can facilitate the mastering of his or her life, but conversely, it can also cause or allow her or his dependency to continue. Against this backdrop, there can be no doubt that the prevention of contingencies is amongst the central duties of social benefits providers. This has of course always been part of their area of responsibility: in the field of accident insurance, accident prevention regulations were enacted when the providers were established, and rehabilitation offers were developed at an early stage of health and pension insurance provision. ____________________ 410 Eichenhofer, in Eichenhofer/Wenner (eds.), Wannagat-Kommentar zum SGB I, IV, X, 2012, section 31 SGB I, recitals 3 et seq. 411 Gilbert, Society July/August 1998, pp. 8, 12; similarly Giddens, Beyond Left and Right, 1994, pp. 18, 180. 412 Id., Welfare Justice, 1995, 151 and passim.

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Since then, the watchword in social security has been: prevention takes precedence over intervention, and rehabilitation over compensation. As a consequence, within the framework of social precaution, social benefits providers – notably health insurance funds – must also engage in health education in respect of individuals. This task includes the right to make recommendations about their lifestyles, to inform them about health hazards and ways to reduce them, and to give suggestions for healthpromoting behaviour. Such health education could gain added weight if providers were authorised to withhold benefits from beneficiaries that rudely ignore the recommended behaviours and thereby accept the risk of sickness with their eyes open. Providing assistance to a beneficiary is usually to no avail without the latter’s cooperation.413 It would however profoundly change the function of social security if health insurance funds were given the power to impose sanctions in such cases. The social security institutions, those guarantors of individual protection, would then become the guarantors of individual good conduct and would consequently switch from being a helper into being a supervisor of the individual. Positioning social security in this way would correspond quite well to the pre-modern welfare state of the late eighteenth century, which pledged to regulate every individual’s lifestyle in a pedantic and meticulous manner and to oppress and patronise him or her. The French Revolution was directed precisely against this form of welfare state. It confined the state to guaranteeing individual rights and left the protection of the individual mainly to his or her self-responsibility. Therefore, to call upon the state to educate its citizens is to hark back to a pre-modern conception of the state; health has now become a fundamental asset and, crucially, the preservation and restoration thereof is now an extremely expensive commodity. Social insurance providers may not be denied the task of educating citizens as regards health, but may very well be denied the authority, derived from it, to impose sanctions in cases of noncompliance with their recommendations. The power to sanction acts of self-endangerment by revoking or reducing benefits could furthermore be obtained from the economic function of the legal relationship governed by social law. Withholding benefits could be conceived as the internalisation of external costs. In this context, selfendangerment would have to be understood as a “moral hazard”414 and consequently, in principle, as inadmissible free riding, which is why its ____________________ 413 Trenk-Hinterberger, in Ruland (ed.), Festschrift für Zacher, 1998, 1163. 414 Hänlein, ZVersWiss 2002, 579.

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burdens would have to be placed directly on the one who caused the distress. This proposition eschews any form of moralising. Through the restriction of social protection to risks that are not individually controllable, the scope of social protection is limited to those risks for which it has historically been established. The challenges that social security systems face because of self-created dangers 415 (“manufactured risks”) 416 could be overcome in this way. A purely economic allocation mechanism prevails. Individually controllable costs have to be borne individually, and society only has to defray the costs that are not individually controllable! This reasoning transfers the cold, socio-ethically unfiltered logic of economy to the solidary and individual responsibility in legal relationships governed by social law. These consequences may appear harsh and merciless; however, such reasoning is typical of the economy. Its solutions are generally surrounded by an aura of boldness and political incorrectness. Not uncommonly, the economy flirts with the breaking of social taboos. What is thus to be said against the translation of economic cost-benefit considerations into the field of social security? However, a lifestyle which is against the rules because it involves potential risks is not the only source which generates charges. They are no less likely to be triggered by a lifestyle that complies with the rules. While smokers, drinkers, and insured persons who are not athletic or tend to overindulgence, burden the healthcare system, it remains clear that a healthy lifestyle leads to longevity in terms of old age pension provision. Also the burden caused by austerity would be individually controllable. Should it be sanctioned as well? Since social benefits are always triggered by individual behaviour, one cannot conclude that they should be prevented for the sake of avoidance of costs. Many studies have revealed that high life expectancy is associated with high income and low life expectancy with low income.417 High income does not necessarily but often correlates with a healthy lifestyle. Nevertheless, a healthy lifestyle does not spare the social benefits system costs. On the contrary: the cost for the community of solidarity increases the more individual lives comply with the rules. ____________________ 415 BSGE 64, 159; 12, 242; Hänlein, ZVersWiss 2002, 579, 587. 416 Giddens, Beyond Left and Right, 1994, p. 180. 417 Hummer/Rogers/Eberstein, 24 (3) Population and Development Review (1998), p. 553; Reil-Held, Die Rolle intergenerationaler Transfers in Einkommen und Vermögen älterer Menschen in Deutschland, 2002, 149 et seq.

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Each beneficiary has a claim to protection against the social benefits provider; but this right does not correspond to a duty to live life in as harmless a manner as possible. Direct coercion to enforce it is not admissible. The right to social benefits could only be vindicated under the legal conditions of lacking individual co-responsibility; it could thereby be formulated as a behavioural expectation, the disregard of which would be sanctioned with the loss of the right, and it would thus correspond to a non-binding legal obligation (Obliegenheit).418 A non-binding obligation to refrain from avoidable self-endangerments cannot be inferred from the law. Smoking and alcohol consumption, overeating but also sporting activities involving risks are, in principle, permitted. The law confines itself to the prevention of harms to third persons that might occur through the exercise of these hazardous activities – for example by way of non-smoker protection or safety requirements for carrying out sports activities involving risks – and to the protection of children and young people by prohibiting the sale of spirits and tobacco products thereto. Such rules shape the ‘how’ not the ‘whether’ of self-endangerment. The state may very well be under an obligation to protect its people, their lives, their health and their physical integrity. But the state’s obligation to protect does not correspond to the individual’s obligation to protect her- or himself. Legal rights can only ever establish behavioural expectations between several persons. As a consequence, a right to self-preservation is already conceptually impossible.

d) The claim to social benefits and human rights The conception of human rights, which have been developed over more than 200 years in Europe, contradicts this assumption to an even greater degree. They leave personal destiny in the hands of the individual and thus detach it from the public community. An individual is a priori called upon to develop according to their own self-imposed standards. He or she is protected in this effort by the legal order. It must respect every aspect of legal self-development for the sake of the person’s autonomy, even if it appears unreasonable in relation to the standard of usefulness. The law accepts that a gifted person may waste away her or his talents, that a person ____________________ 418 Richtig Mihm, NZS 1995, 7, 12; Zacher, ZfS 1983, 171, 175 “charges” (“Lasten”) and not “duties” (“Pflichten”).

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capable of work may work less than possible419 and that a healthy person may maintain a lifestyle leading to sickness. The individual is not met with respect because the consequences of his or her conduct is beneficial to society, but because only in this way can state paternalism with respect to individual life courses be avoided. Freedom of expression comprises the right to express inconvenient and unreasonable opinions, scientific freedom the right to deviate from the received opinion, and artistic freedom, today especially, also means border crossing. Essentially the question is raised: what constitutes liberty? Is it to abstain from state intervention in order to enable decisions for which individual responsibility is taken – or, in Isaiah Berlin’s words,420 “negative liberty” – or is it the opportunity, opened up through social benefits, to act confidently and autonomously, hence “positive liberty”? The activating welfare state concerns both dimensions of liberty. It is also responsible for the protection of negative liberty; this liberty cannot be foreign to the activating welfare state, since the latter has to respect human rights particularly when clarifying the conditions for benefits and must comprehensively take into consideration, appreciate and recognise decisions of conscience in the context of the reasonableness of acts of cooperation.421 Yet, the activating welfare state’s main emphasis is on the enabling of action and hence on the protection of “positive liberty”. This conception is in line with the tradition of Hegel, who defines the status of a subject through freedom of action: “The subject is the series of his acts. […] The right of the subject’s particular being to find himself satisfied, the right, in other words, of subjective freedom, constitutes the middle or turning-point between the ancient and the modern world.”422 The modern age is based on the vita activa, which has become directly present and visible. In a liberal society, the social benefits system therefore has to be brought fully in line with rights to freedom. The individualisation also includes social security.423 The social benefits system submits to individual arbitrariness without this being objectionable or even to be prevented. If, according to the law of a state, social protection depends on whether the beneficiary finds domicile or employment in that state, then the individual choice of domicile or employment flows directly into the social security to ____________________ 419 420 421 422

Peters-Lange, Zumutbarkeit von Arbeit, 1992, 156 et seq. Id., in id., Freiheit, 2006, 197 et seq. BSGE 51, 70; 54, 7; 61, 158 – the case law is inconsistent. Hegel, Grundlinien der Philosophie des Rechts, 1821, section 124. Hegel, Philosophy of Right, Kitchener: Batoche Books, 2001, translated by S.W. Dyde. 423 Zapf (ed.), Individualisierung und Sicherheit, 1987, 57 et seq.

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be provided in a state. If – like in the case of survivor’s benefits – the widow’s pension is contingent on the insured person’s matrimony to the beneficiary during her or his lifetime, then the act of marriage creates social rights, whereas the absence thereof excludes social protection. If employers are liable to bear social benefits, they can relieve themselves of this burden by relocating their place of business to another country; conversely, they have to co-finance the social benefits system of a given state when incorporating a business in that country. If the level of social benefits depends on the wage received before the contingency, the parties to the employment contract, by determining the amount of the wage as well as the amount of work performed, are able to indirectly decide on the volume of social benefits as well; in all these figurations, we find expressions of “social law contingent on private law”.424 The jurist dealing with social security is thus fully aware of the extent to which social security conditions are malleable through transfers of property under private law and are accordingly shaped on a massive scale. This can be explained by the fact that the basic elements of social security rest upon private law concepts such as the domicile, place of employment, matrimony, employment relationship and the employee’s wages, and are therefore directly subject to conditions governing legal transactions under private law. In a free society, the individual can, in principle, freely choose his or her way of life. It is not the legal community’s task to decide whether an exercise of individual freedoms is feasible or unfeasible and accordingly attach certain exclusions of benefits to the specific exercise of particular liberties in the field of social security. The refusal of protection comes into consideration only as a reaction to proscribed behaviour. A society can also penalise and thereby prohibit mere self-endangerment. However, this would not only constitute an interference with the liberal substance of society, but also the abandoning of its opportunities for development. Ulrich Beck’s study 425 “Die Risikogesellschaft” (“The Risk Society”) rightly stresses that the gain in freedom associated with technical development is necessarily accompanied by a proliferation of risks. This corresponds exactly to John Kenneth Galbraith’s426 observation that comprehensive social security is peculiar to affluent - not poor - societies. ____________________ 424 Eichenhofer, in Barta/Radner/Rainer/Scharnreitner, Festschrift für Martin Binder, 2010, 551. 425 Id., Risikogesellschaft, 1986. 426 Id., The Affluent Society, 1958.

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However, individually guaranteed liberties are not a carte blanche to harm others. In a world formed by the welfare state, the Roman tenet qui iure suo utitur neminem laedit (“he who exercises his rights, harms nobody”) is precisely not applicable.427 Liberty is not a blanket excuse for total permissiveness to the disadvantage of third parties whatsoever. For the freedom of the individual is enabled by others. In the welfare state, the idea expressed by C.W. Mills applies: “private troubles are becoming public issues”.428 For this reason, public issues – regularly the interests of other beneficiaries – may be asserted as corrections of the individual’s interests. Freedoms can thus be restricted in the general interest and in the interest of others, as far as the restriction is itself driven by the effort to balance freedom and solidarity, internally and in substance. The legal approach to the self-harm caused by alcohol illustrates the whole range of the subject matter, and is exemplary for other fields of self-harm: those who have to ascribe the damage to the fact that they regularly consumed alcohol, of their own accord, may be denied protection through social benefits.429 Furthermore, every insured person could be expected to undergo harmless alcohol abuse treatment.430 At the same time, alcohol dependency is regarded as a kind of disease, beyond the scope of self-control.431 If the harm is to be attributed to frequent failures that could have prevented the alcoholic state, there is likewise a public liability.432

e) Sanctioning and lifestyle Even though lifestyle is a factor which yields various implications for social security, sanctions against ways of life that engender social charges are limited to certain exceptions; and this should stay like this in the future. The exclusion of benefits in case of self-endangerment is usually not covered by sanctions. It is not indicated that the rules of self-destruction, which limit benefits, should be extended to the situation of selfendangerment since the former differ from the latter in terms of its under____________________ 427 Ewald, Der Vorsorgestaat, 1993, 449; Goodin, Reasons for Welfare, 1988, 130 et seq.; Ruland, DRV 2000, 733. 428 Esping-Andersen, Why we need a new Welfare State, 2003, p. 12. 429 Tomandl, Grundriss des österreichischen Sozialrechts, marginal number 143. 430 OGH SSV NF 8/114. 431 BSGE 28, 114; 46, 41; cf. also BGH – 20.5.2003 – X ZR 246/02, NJW 2003, 2449 with comment Eichenhofer, LMK 9/2003, 161 et seq. 432 BSGE 62, 187.

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lying tendency: acts of self-destruction manifest the individual’s responsibility. Acts of self-endangerment, on the other hand, are often based on behaviour that conforms to social norms or self-deception. In an order adhering to the rule of law (or in a Rechtsstaat), a limitation of benefits in the case of acts of self-endangerment requires clear and unambiguous legal rules. At first glance, enacting such rules might make sense for educational and economic motives. But the state is not the guardian of the good conduct of its citizens, nor is the economic argument appropriate, since the welfare state is not burdened only by unhealthy conduct but actually even more by healthy conduct. In a liberal society, social security is committed to the principles of freedom. As long as self-endangerment is deemed the exercise of freedom, the social benefits system has to realise this guarantee – not to facilitate the former but to secure the freedom. Any attempt to categorise human behaviour according to a scheme of what is socially desirable or not would be tantamount to the urge to direct the lives of individuals into channels predetermined by the state; this would undermine the liberal substance of the welfare state. This does not mean a carte blanche for self-endangerment. Social benefits providers can and must point out the dangers of harmful conduct, and the beneficiaries must be mindful of health-conscious behaviour, and proscribe health-damaging behaviour. Non-smoker protection and education about the dangers of alcohol should be developed to a greater extent. The state and the community of solidarity are not just allowed but are also advised to encourage the individual as to the right exercise of their freedom, so as to burden others in society and the general public as little as possible, through concrete support measures (sport, prevention, information about dangers and hazards) as well as coordinated and proportional reactions. Pursuing this objective is legitimate if this is done by the right means, that is, those that safeguard the rights of the individual, and in conformity with the rule of law (or Rechtsstaat). The refusal of social benefits for reasons of self-endangerment is only consistent with the liberal substance of a social order if: the individual can avoid the danger; the damage that is incurred by the community of solidarity when the danger is realised is considerable; the conditions to avert the danger are precisely circumscribed and their observance is made sufficiently binding; and finally, the refusal of the benefits remains the ultima ratio, which yields precedence to milder forms of cost sharing. Such concretely delineated reactions that serve the behavioural control and seek to be proportional are not only not detrimental to the liberal substance of a 121

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society, but on the contrary, are downright in accordance with it. But the condition for this is that the concrete behavioural requirements would be imposed by way of case management and in the form of quasi-contracts: restrictions of freedom that would be linked with bureaucracy and an intensive administrative transformation of the individual way of living. Such approaches are to be found in the integration agreements of unemployment insurance and in rehabilitation, the promotion of employment and retraining. The requirements of doctors and nurses vis-à-vis their patients in the context of medical treatments (compliance) also follow this model.

3. The social law’s potential for abuse and fraud The transition from the consumptive to the activating welfare state is to be understood as a response to the diverse critique of the traditional welfare state’s susceptibility to abuse and fraud. Neo-conservatives – like the USAmerican Charles Murray433 and Briton Robert Skidelsky434 - have criticised its tendency to undermine self-responsibility, diligence, family responsibility and precaution. Robert Skidelsky makes this critique absolute: “The welfare state has become a huge hospital which unlike an ordinary hospital creates more patients than it treats.” He argues that the welfare state itself makes it rational for people to become and stay poor – at someone else’s expense.435 The recipients of social benefits appear as adapted, coldly calculating homini oeconomici. They avail of the possibilities created by the welfare state in the knowledge that they may also claim its benefits, which are earmarked for inevitable emergencies, if they cause the distress themselves. Empirically, it is hard to determine whether the social security system holds much potential for abuse or fraud and inhibits work in this way. The welfare state has always been cognisant of this. Already when fixing the replacement ratios, it determines their amount in such a way that a beneficiary capable of work is incited to engage in paid employment, even if it is poorly recompensed (make work pay). However, there are poverty traps – in particular for families and single parents – since, from an economic perspective, it is not necessarily more favourable to take up work than to continue drawing benefits.436 A solution to the problem is a family benefit, ____________________ 433 434 435 436

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Id., Losing Ground, 1984. Id., Beyond the Welfare State, 1997. Ibid, p. 3. Harris, in id., Social Security Law in Context, 2000, 39, 48 et seq.

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which covers the consumption rates, as well as tax exemption at the minimum subsistence level.437 Means-tested benefits are said to induce peculation and falsehood.438 In the case of young people, it is empirically demonstrated that insurance against unemployment risk provokes the danger of moral hazard; but reliable findings as to the assumption that people would choose paid unemployment over paid work are not yet available.439 In a study for the British House of Commons about fraud in a housing benefits case,440 the commission established that, against the background of widespread fraud in general social life, social benefit fraud would equally be considerable. In light of the extensive financial means allocated to social benefits, the level of fraud in this area would carry especially substantial negative weight. On the basis of its research on housing benefit fraud, the commission found that the benefits obtained through fraud would represent 10-20% of the total volume of benefits granted. The commission saw the prevalent culture of obtaining benefits by fraud and dishonesty, and the lack of scruples in burdening the general public with unjustified duties to pay as the biggest obstacles to be effectively combatted. The commission adduced numerous ways of fraudulently drawing benefits. These ranged from making incorrect statements in order to live in social housing, whether via an omitted notice to vacate a flat, the concealment of a sublease, a declaration of an excessive rent, the concealment of a family relationship between landlord and tenant, giving incorrect information about personal income, the fact of cohabitation or a partner’s income, through to concealed earnings from secondary employment from self-employment, overtime hours or failing to declare capital income and income from rent or leases. In total, social benefit fraud accrues from a body of rules, in which the relation between openness, data protection and confidentiality has not been sufficiently clarified. In the programme “New Deal for Welfare”441 forming the activating welfare state, the combat of fraud also plays a central role, bearing in mind the bitter awareness that its causes are manifold and ubiquitous. As a solution, it is proposed to better interlink the different administrations of the data collected with respect to the contingency, to be more deterrent and to apply more efficient sanctions. ____________________ 437 438 439 440

Ibid., 54 et seq. Ibid., 57. Ibid., 58 et seq. Housing Benefit Fraud I, II, House of Commons, Session 1995-1996, HC 90 - I, 90 –II. 441 Ibid., 67 et seq.

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The legislation,442 enacted as a reaction, conferred power upon social security offices to gather information about the funding status of benefit recipients from banks, insurance companies and other financial service and care providers, in order to prepare criminal prosecutions, if this information could not be obtained directly from the claimants. The effects of these efforts were however evaluated in different ways; at any rate, fraud cases could be detected even after the introduction of the measures.443 Hardly any noteworthy differences could be observed in the various benefit programmes with regard to their susceptibility to fraud. The reasons why social benefit fraud is committed are diverse: “need, greed or opportunism”444 – occasionally perpetrators elevate fraud to an act of civil disobedience against an altogether unfair system.445 A central problem consists of the public perception of social benefit fraud. While it is belittled as a trivial offence or even held up as something like a national sport, the chances of substantially combating it are slim.446 Besides, comprehensive control rights are in conflict with the protection of data and confidence so that, in principle, a transfer of data is to be considered only in case of sufficiently concrete suspicion.447 Hence, the intensification of the struggle against fraud and abuse is a distinctive hallmark of the activating welfare state. On grounds of a postulated self-responsibility, beneficiaries are exposed to regular, extensive and sometimes embarrassing interrogations, even if they are not under general suspicion of potential social benefit fraud or abuse. The widespread fraud and abuse entails that the granting of social benefits requires ample controls and involves numerous explanatory duties and obligations to disclose for the beneficiary. Against this background, data protection fulfils the function of preventing the social administrations that process the data from disclosing it to the public.

____________________ 442 Social Security Fraud Act 2001. Code of Practice on Obtaining Information. April 2002. 443 McKeever, (2009) 16 J.S.S.L., 139, 144 et seq. 444 Ibid., 145. 445 Ibid., 146. 446 Ibid., 148. 447 Ibid., 153.

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1. Individual promotion and contract “Give a hand, not a handout!” With these words, John F. Kennedy substantiated his conception of social policy: instead of fobbing the needy off with cash benefits, socio-political measures were to present the individual with assistance to help themselves. This is an early leitmotif of the activating welfare state. The same central idea propels the social policy reforms of the last decades. Anthony Giddens formulated this approach by saying: “No rights, without responsibilities!”448 Both remarks from different eras show that the activating welfare state has to protect those in need through services in order to foster their autonomy so that the beneficiaries become independent from its payments in the future. Public assistance was primarily to provide help to self-help.449 This motive also guided the German reforms of labour promotion.450 A fundamental issue of all unemployment protection was and still is to prevent the assistance granted from dissuading the jobseeker from engaging in employment or extending it.451 The English Poor Law of 1834 makes help for those capable of work contingent upon the acceptance of institutionalised labour. Requirements that benefits must be lower than wages (Lohnabstandgebote) were conceived to make labour more attractive than the receipt of cash benefits. The activating welfare state attempts to ensure labour market participation through new administrative structures.

____________________ 448 Giddens, Beyond Left and Right, 1994. 449 Cf. also section 1(2), 2nd sentence BSHG: “The assistance shall … enable a life that is independent from it; …” (“Die Hilfe soll ... befähigen, unabhängig von ihr zu leben; ...”): Schellhorn/Jirasek/Seipp, BSHG, 1997 (15th edition), section 1, recital 8. 450 Bundesministerium für Arbeit und Sozialordnung, Moderne Dienstleistungen am Arbeitsmarkt, 2002, 72 et seq. 451 Ibid., 291.

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a) The structure of contracts in the social administration With the introduction of the ‘Jobseeker’s Allowance’ in the United Kingdom, assistance was to be granted as a support for and during the job search, distinct from paid work, but not as an income.452 The Jobseeker’s Allowance is based on a “contractarian approach to welfare” predicated on an imagined social contract between the citizen and the administration, which builds on the relation of giving and taking. William Beveridge has previously mentioned the “enforcement of the citizen's obligation to seek and accept all reasonable opportunities of work”.453 The official government document “New Contract for Welfare” revisits this idea and speaks of a state-citizen contract with balanced reciprocal rights and duties. For unemployment not only costs the state money in the form of the benefits granted but also leads to a loss of tax and contributions on the part of the public authorities.454 The jobseeker’s agreement may thus mean that “people […] have no good reason to be or to remain unemployed”.455 If they were encouraged to take up work instead, this would be in the jobseeker’s long-term interest.456 Labour does not just create income but guarantees autonomy and promotes self-esteem. “It is therefore considered appropriate for the state to use the social security system to reinforce social values about the work ethic”.457 This approach corresponds to the German integration agreement. Here and there, the contract plays a key role. The relationship between the labour administration and the beneficiary is conceived as a contract that imposes right and duties for both sides. This choice finds its expression in the integration agreement458 (section 15 of the German Social Code, book 2 (SGB II)). The contract symbolises that social benefits rest upon agreements. The beneficiary does not obtain an unconditional pecuniary claim but is to be entitled only if he or she performs the actions agreed upon with the administration in order to work his or her way out of unemploy____________________ 452 453 454 455 456 457 458

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Lundy, in Harris (ed.), Social Security Law in Context, 2000, pp. 291 et seq. Ibid., 292. Ibid., 293. Ibid., 293. Ibid., 293 et seq. Ibid., 294. Spellbrink/Eicher, Kasseler Handbuch des Arbeitsförderungsrechts, 2003, section 16, recitals 2 et seq.

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ment. The contract is of increasing significance not only in the relation between labour administration and beneficiary but also between the state and the labour administration. Through target agreements, the former commit themselves to the reduction of unemployment. The contract is a technique of “New Governance”. Within its framework, consensus building and negotiation replace one-sided, bureaucratic and hierarchical measures of public administration. For centuries, unilateral regulation dominated most administrations, until the recent past. The administrative act (Verwaltungsakt) is a prototypical instrument of the public administration based on legal command and law enforcement, whose traditions also permeate and characterise the public benefit administration. However, it has become increasingly questionable in the past decades as to whether this structure is capable of overcoming social disadvantages and securing social integration. It is possible to trace a transformation from conditionality (Konditionalprogrammierung) to finality in terms of programming (Finalprogrammierung) throughout the entirety of administrative law– and particularly of the public benefit administration. In the activating welfare state, the labour administration is also under a duty to cater to the concrete needs and possibilities of individual unemployed persons in order to reintegrate them into the labour market; in that way, the administration is empowered to effectively and efficiently support the unemployed. In that respect, the public administration adopts the techniques of private companies that act like market actors. The public labour administrations were initially even organised as service agencies (section 37(c) of the German Social Code, book 3 (SGB III) in its old version). The government set targets and possibly also placement rates to be achieved by the administration. In such an organisation, the labour administration’s employees are held personally responsible for the success of placing jobseekers. Training, integration and help services have to answer for the success of their assistance vis-à-vis the labour administration (section 77(1) of the German Social Code, book 3 (SGB III)), the labour administration must select the service providers through a procurement procedure (section 45(3) of the German Social Code, book 3 (SGB III)), and placements through employment agencies can be replaced by recourse to private placement services on the basis of job placement vouchers (Vermittlungsgutscheine)459 (section 45(4) of the German Social Code, book 3 (SGB III)). The entire labour administration is pervaded by a multifaceted ____________________ 459 Bundesministerium für Arbeit und Sozialordnung, Moderne Dienstleistungen am Arbeitsmarkt, 2002, 105 et seq.

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and closely knit string of contractual agreements, from the top down to the individual local units as well as within the distinct departments therein.

b) Contract and freedom of contract The British ‘Jobseeker`s Agreement’ is based on a declaration of consent between the beneficiary and the administration in which the jobseeker expresses his or her consent to the competent body concerning the type and timeframe, a weekly exemption day and personal impediments. At the same time, the declaration contains the observation that there is no dispute about the contents of the agreement. From this, it is concluded that the jobseeker is obliged to accept corresponding positions. Thus, the instrument includes the labour market conditions in the individual benefit claim and deals with the consequences of unemployment in a perspective, individual and concrete manner through contract.460 From a legal perspective, the question arises: is the notion of contract used metaphorically or correctly in the suggested contexts? If the latter is true, is the notion of a contract appropriate in adequately conveying the granting of social benefits and the activity of the placement service? Contracts are a substitute for bureaucratic and hierarchical administration. This administration was once based exclusively on statutory rules that normalised every step in the procedure down to the last detail. Contracts enable the public administration to assume a new, active role beyond a specific, statutory framework, which amounts to a model predicated upon unrestricted promotion (section 10 of the German Social Code, book 3 (SGB III)). In the former arrangement, the administration called the shots and the beneficiary had to comply. The administration prescribed the role of the beneficiary, who had to act according to the assignment. Nevertheless, the traditional administration was restrained by adequate but also necessary legal guarantees so that its and any public power was confined. The principles of the rule of law (Rechtsstaatlichkeit), the administration’s conformity to law (Gesetzmäßigkeit der Verwaltung), proportionality, equal treatment, non-discrimination and of respect for human rights were accepted and provided the beneficiary with legal guarantees against the one-sided supremacy of the public administration. Because of the basically asymmetrical connection between the labour administration and the individual, their relationship was embedded in a set of legal rules that was to ____________________ 460 Lundy, in Harris (ed.), Social Security Law in Context, 2000, 304.

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secure the unemployed, being in principle weaker, a framework providing for fair and appropriate treatment. The contractarian approach in labour administration, in contrast, conceives the beneficiary as an individual party to a contract with the public administration,461 as someone with specific capabilities, demands and limitations. For the sake of more effective assistance, the expected and owed consideration is granted in a tailor-made rather than in a standardised form and hence is not oriented to a beneficiary average but rather to their specific skills. The individual’s right is predicated on bilateral agreement instead of unilateral order, on mutual arrangement in place of one-sided determination. Contract and freedom of contract are closely linked with each other. Freedom of contract is not generally acknowledged and guaranteed as a human right but in its individual manifestations,462 the contract enables economic and social self-determination. Contracts establish civil society inasmuch as they allow for self-determination in an equal manner. The freedom of contract makes civil society possible in autonomy from overwhelming state intervention; the contract thus secures the people’s selfdetermination in relation to their own living conditions.463 But can this general justification of the contract be transposed to the contractual relationships between the labour administration and the recipient of social benefits? Certainly no recipient is obliged to apply for the benefits to which he or she is legally entitled. Just like the claiming of social benefits, the refusal to do so is also a human right. Since social benefits provide the recipient and his or her family with the conventional minimum subsistence level and hence with basic protection, the beneficiary is usually inhibited from deciding against the benefits. The survival of the beneficiary and that of his or her family hinges on the benefits, so the beneficiary usually opts in favour of them. But does such existential dependence on these benefits exclude the freedom of contract? The freedom of contract is not compromised by the fact that the service offered by one of the contracting parties is necessary for the other’s survival. Otherwise a hungry customer in a baker’s shop would never be able to freely decide, since he relies on the bread. Thus, this argument does not ____________________ 461 Westerveld/Sol, Contractualism in employment services, 2005. 462 However, through the EU Charter of Fundamental Rights only in view of special subject matters, e.g. the freedom of assembly (Article 12), freedom to choose an occupation (Article 15), freedom to conduct a business (Article 16) and the right to property (Article 17). 463 Flume, Das Rechtsgeschäft, 1992, 1 et seq.

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provide any substantial insights into the problem of the contract in relation to labour administration. Unlike a baker, the labour administration has a monopoly on the provision of elementary aids. While the buyer has free choice among competing suppliers and can therefore freely decide with whom to enter into a contractual relationship, the relationship between the labour administration and the beneficiary is based on a monopoly, which precludes free choice. The same is true in regards to the relationship between state and labour administration, the labour administration and its employees, as well as the labour administration and its independent auxiliary services. Because forced labour violates human rights,464 a sanction for the lack of cooperation may involve the withdrawal of benefits or – in view of the European poor law tradition, more realistically – the partial or temporary limitation of benefits. On the one hand, such reductions make the recipient of the benefits feel the sanction; on the other hand, they are not severe to the point that they threaten the recipient’s survival.465 Hence, the contractual obligations incumbent on the beneficiary are to be understood merely as conditions of the benefit claims. The elements of the contract in the labour administration thus cannot be explained by the freedom of contract as human rights. Social benefit claims always result from statutory law, even though their terms may also be specified by contract.

c) The notion of contract The notion of contract is formulated in Article 1134(1) of the French Civil Code (Code Civil) as follows: “Les conventions légalement formées tiennent lieu de loi à ceux qui les ont faites”: agreements that are lawfully entered into thus take the place of the law for the contracting parties.466 The leitmotif for norm-setting follows the maxim: Stet pro ratione voluntas! Let the individual will stand for reason! In place of the general will, the common will of the contracting parties is recognised as binding. If the bureaucratic type of labour administration is replaced by the contract, the question arises: as a key category of the private law society, is the notion of contract suited to govern the relationships between labour administration and jobseekers? Does a public administration that sees it____________________ 464 ILO Convention No. 105 of 17 January 1959 concerning the Abolition of Forced Labour, IAO Übereinkommen und Empfehlungen, 1993, 1015. 465 Cf. in this respect in more detail infra ch. VI 3 b, p. 155. 466 Das Prinzip der Selbstbestimmung: Flume, Das Rechtsgeschäft, 1992 (4th edition), 1 et seq.

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self as a “contracting partner” of its “clients” and acts accordingly fit into the traditional institutional structure developed for public administrations? In order to answer these questions, the contractual elements in the labour administration have to be circumscribed to begin with. Then one needs to ask: does the use of the contract overcome the traditional legal guarantees against public authority? In German law, in an abstract and not very clear fashion, a contract is conceived as the concurrence of wills of the contracting parties (section 145 of the German Civil Code). In such a formal sense, integration agreements could also be considered as contracts. Accordingly, they are regarded as public law contracts in different contexts arising in social law.467 English law follows a different conception of contract. It is not understood as the concurrence of wills but as a compromise (bargain) based on performance and consideration.468 Every agreement which aims for an exchange of performances is thus considered as a contract provided the promised performance is answered by a consideration. The latter is defined in the following way: “A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other.”469 This description is supplemented by the doctrine of privacy. Accordingly, only the parties concerned are entitled to enforce the contractual rights and duties, not any outside third party. In all relations between labour administration and jobseeker it must be assumed that the jobseekers have no real veto power, as long as they want to maintain their status. It is in line with the European social model470 that social pauperisation also appears as a disturbance of the public order of a society. If someone were thus referred to the option of refusing social benefits, society would have to acquiesce in the resulting disruption of public order. Precisely because of this, the granting of social benefits has been recognised as a public function for centuries.471 When fulfilling it, ____________________ 467 Eichenhofer, in Eichenhofer/Wenner (ed.), SGB I, IV, X, 2012, concerning section 53 of the German Social Code, book 1 (SGB III (SGB I). 468 Prime, in Hübner/Ebke (eds.), Festschrift für Bernhard Großfeld, 1999, 889. 469 Currie v. Misa (1875) LR 10 EX 153, p. 162. 470 Nielsen/Szyszczak (eds.), The Social Dimension of the European Community, 1993 (2nd edition); Pieters, The Social Security Systems of the Member States of the European Union, 2002; Gold, The Social Dimension, 1993. 471 Geremek, Geschichte der Armut, 1988; Stolleis, Geschichte des Sozialrechts in Deutschland, 2003.

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the public administration is bound to the legal rules that generally govern public activity: the rule of law (or Rechtsstaatlichkeit), equal treatment and human rights. Therefore, the legal basis of all benefit claims through unemployment insurance is not a contractual agreement but an Act of Parliament, because they are derived from the Act. It determines their scope in detail and thereby includes the agreement in the statutory context. However, the law eschews any regulation of concrete actions the unemployed person is to undertake. These accrue from the contracts concluded. As a consequence, the contract as such cannot create any obligations that do not have a statutory foundation. The labour administration cannot enforce compliance with obligations, but at most can sanction noncompliance by reducing or withholding the benefits owed under the law.

2. Contract and the social administration’s power under public law a) Contract and cooperation of benefit recipients and providers Contractual agreements ultimately flesh out the cooperation between social administration and benefit recipients based on statutory law. This relationship rests on a relation of legal subordination. For the administration unilaterally decides on the admissibility of the claim put forward. The contract specifies the conditions for the benefit claim, the requirements of which the beneficiary has to bring about and fulfil him- or herself. The law permits such contracts as a means of arrangement and thus allows space for the negotiation of conditions formerly fixed by statutes. Individual support plans, inclusion and integration agreements within the framework of youth welfare and immigration services, contracts about education as well as rehabilitation and job search strategies are examples of such agreements. The administration and beneficiary’s rights to conclude such contracts are based on statutory law which authorises both to negotiate these agreements. The legal form of the contract underlines that the social benefits are not granted unilaterally and unconditionally but based on specifically detailed requirements in relation to the beneficiary’s own cooperation and in the expectation that the latter will thus be enabled to reintegrate into the working society and, in return, promises to undertake as many efforts to this end as possible. Therefore, the contract symbolises that the obligation assumed by the benefit recipient represents his or her part of the cooperation relationship.

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Labour promotion benefits are exclusively granted with a view to enabling the jobseeker to seek employment. Consequently, it implies the expectation that the recipient actively and effectively applies him- or herself to achieve this goal. The obligations entered into in the integration agreements only make explicit what has applied for the unemployed all along:472 the benefits do not constitute a one-sided unconditional transfer entitling the unemployed to a temporary income without work, but rather represent assistance in the phase and for the purpose of the most effective job search possible.473 The agreement outlines, specifies and structures the latter. If the beneficiary is faced with more than one education provider, placement service or rehabilitation provider, the contract enables the beneficiary to choose between the services available. The contract thus creates genuine rights of choice between competing service providers. The choice made is to be understood as the result of the beneficiary’s individual decision. According to the courts’ case law, the protection of freedom of choice among providers of social services – comprehensively recognised as the freedom of desire and choice (section 33(1) of the German Social Code, book 1 (SGB I)) – is considered as a substantial socio-ethical and legal value.474 The contract in the labour administration mainly allows and enables the individualisation and hence the specification of the activities imposed upon the beneficiary.475 The contract has to specify the unemployed person’s plans, dreams, capabilities and expectations and simultaneously coordinate his or her labour potential with the demands of the labour market. It is to enable the unemployed to orient and integrate themselves in the com____________________ 472 The historical reason for the introduction of unemployment insurance was: unemployment is a – social – risk beyond individual control (Benöhr, Arbeitsvermittlung und Arbeitslosenversicherung in der neueren deutschen Rechtsgeschichte, 1991). 473 Lafargue, Karl Marx’s son-in-law who affirmed a “right to be lazy” (Das Recht auf Faulheit, 1887); cf. also Giddens, Beyond Left and Right, 1994, 97 (freedom of choice, no benefits without consideration (Gegenleistung)). 474 BSGE 90, 84; Mrozynski, SGB I, 2010 (4th edition), 10 et seq. with respect to section 33; however, the Labour Division of the French Cour de Cassation (31 July 2007, Droit Social 2007, 403) decided that no duties for ASSEDIC accrued from PARE agreements. The judgment suggests that, just like in social insurance law, the principle of the untouchability of benefits also applies to unemployment insurance. Ultimately, the court deduces the lacking binding effect of the integration agreements from the collective agreements between social partners about the integration agreement: Prétot, Droit Social 2007, 403, 409. 475 Cf. Spellbrink/Eicher, 2003, section 16, recital 2 et seq.

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plex and extremely differentiated labour market, in a purposeful manner and without loss of efficiency. In this way, the contract becomes a means of individual assistance by the labour administration in order to increase the unemployed person’s chances of reintegration into the labour market. In the law of social administration, the beneficiary’s cooperation is generally stipulated (sections 60-67 of the German Social Code, book 1 (SGB I)). Accordingly, the beneficiary is compelled to perform a variety of actions: adducing facts, filing for unemployment, filling in forms, producing evidence, having medical and psychological examinations, completing an apprenticeship or advanced training, undergoing a medical treatment or even surgery, within the limits of proportionality and reasonableness. Only a type of cooperation that massively compromised the beneficiary’s health or physical integrity would be seen as unreasonable.476 From all this, it follows that the beneficiary must not confront the social administration with a claims mentality, as their legal relationship is based and relies on cooperation.

b) Self-commitment and cause of liability Sociology477 demonstrates that job placement faces some elementary challenges that give the action of those concerned a quite peculiar imprint: the beneficiaries are regularly in a very precarious, and often desperate economic situation. Frequently, they have been through and have to come to terms with a series of disappointing experiences. As a result, jobseekers’ self-confidence and self-esteem are often low, their confidence in their own capabilities has waned due to diverse disappointments, their work routine has sometimes disappeared and, meanwhile, their professional qualifications – if ever present – may have become obsolete. In the face of this, the jobseeker is not in a principally inferior position to the administration; the discussion,478 however, often makes us believe that they are, even though practically nothing results from such a finding. Rather, in view of those beneficiaries that – although understandably – se____________________ 476 Jung, in Eichenhofer/Wenner (eds.), Wannagat-Kommentar zum SGB I, IV, X, 2012, section 65 SGB I, recital 8 et seq. 477 Sennett, Zusammenarbeit, 2012, 298 et seq. 478 Koppenfels-Spies, NZS 2010, 2; Grienberger-Zingerle, Kooperative Instrumente der Arbeitsverwaltung in England und Deutschland, 2009, 58; Knickrehm, in Schuler-Harms (ed.), Konsensuale Handlungsformen im Sozialleistungsrecht, 2012, 43, 49.

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verely hamper the process of integration, the administration, for its part, will also often find itself confronted by insurmountable difficulties when attempting to encourage individual jobseekers towards active conduct. This has made quite a few experienced job placement officers – close to resignation – become prejudiced in such a way as to believe that the jobseekers are doing their utmost to deceive them. Instead of perceiving the jobseekers’ helplessness, the placement officers themselves feel powerless vis-à-vis the jobseekers! Job interviews – the success of which determines the granting of placements – always have a participatory character. Jobseekers must not focus on themselves, but rather on the work. “The clients are advised never to act towards the potential employer by emphasising how badly they need the job. Both sides are supposedly aware of the applicant’s desperate situation.”479 The placement officers are thus faced with the difficult task of motivating the jobseekers, who may understandably be reluctant initially due to disappointing experiences, to make something of their lives again: “For jobseekers just as advisors, the objective of reorganisation, not on an economic but on a personal level, makes the effort worthwhile.”480 In this context, the contract plays an often underrated role, as it creates a foundation, engaging the individual responsibility of both the jobseeker and the advisor under the conditions of mutually burdening circumstances. If the contract fixes the actions which are expected from the unemployed person, it thereby sets a definitive yardstick with which to assess the unemployed person’s efforts and to sanction them in an appropriate way in case of non-fulfilment.481 The undutiful jobseeker is sanctioned for not keeping a promise and for not fulfilling an obligation accruing from it. If an individual action plan is fixed by contract, a sanction is more easily justified than if the obligations incumbent on the jobseeker were formulated merely in a vague, global, general and impersonal manner. All assistance and also all responsibility can only ever be conceived in a concrete and individual context. For that ____________________ 479 Sennett, Zusammenarbeit, 2012, 298 (“Niemals, so warnt man die Klienten, dürften sie auf den potenziellen Arbeitgeber einwirken, wie dringend sie den Job brauchen. Beide Seiten wissen vermutlich um die verzweifelte Lage des Bewerbers”). 480 Ibid., 304 (“Der Wert der Anstrengung liegt für Arbeitsuchende wie Berater darin, dass sie einen Umbau bezwecken, zwar nicht wirtschaftlicher, aber persönlicher Art”). 481 Bundesministerium für Arbeit und Sozialordnung, Moderne Dienstleistungen am Arbeitsmarkt, 2002, 97 et seq., 100 et seq.

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reason, the contract is a suitable legal instrument for the fine-tuning of a legal relationship designed for the cooperation of the benefit recipient and provider. This is because the contract specifies the beneficiary’s obligations and accordingly makes for his or her self-commitment. The administration is not just bound to provide social benefits as a condition of the unemployed person’s cooperation; at the same time, it has to support his or her job search. In a market society, the success of this search is not guaranteed. This is because, ultimately, it always takes two – a jobseeker and an employer – to conclude a contract. Therefore, not all of the duties that the unemployed benefit recipient must carry out within the scope of such contracts necessarily achieve the aspired objective. This factor is relevant both for the jobseeker and for the labour administration – even if the unemployed person has taken all actions required by the contractual agreement, successful integration into employment is still not a certainty. Hence, sanctions against the unemployed person are not justifiable if there is no guarantee that the actions performed will yield a successful result. Rather, the labour administration is confronted with the almost daily experience that its anticipations are disappointed or at least do not result in the intended outcomes. Enforcing unemployment benefit claims usually requires not only being physically present in the employment agency but also an ability to orient oneself in the abstract, bureaucratic and legally regulated world of the provision of social benefits.482 The language of the forms may hardly be understood properly by a jobseeker not proficient in dealing with administrative issues. The means of communication are those of the administration and are often couched in its own language and terms. The supplicant’s stigma has strained this communication ever since the time of the poor relief; on the other hand, employees active in social administrations are regularly thrilled by their social function and mission. Anti-discrimination laws can further facilitate the jobseeker’s empowerment and thereby protect the benefit recipient. Since 1970, the British social administration has been dominated by an orientation towards a consumer model; local advisory councils are to promote local and “customer proximity”. The state’s expectations in relation to the labour administration can also be too high. The labour administration’s employees might construe conditions for placing jobseekers too broadly or optimistically, or propose wrong strategies, so that a jobseeker fails because of the administration’s error. ____________________ 482 Fulbrook, Administrative Justice and the Unemployed, 1978, 68.

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Contract and the social administration’s power under public law

c) Individualisation and equality in social administration Under the conditions of a social administration organised by contract, it is therefore generally questionable as to whether, in view of the uncertainty of the market, the failure of individual actors within the labour administration making false assumptions can justify sanctions for the non-fulfilment of contractual expectations. Since the contract assigns concrete tasks to the individual, it enlarges the public administration’s opportunities for action. In turn, this extends its responsibility: sanctions cannot be imposed without specific and concrete action strategies that have a general chance of success, at least for particular lines of action, with a view to integrating unemployed people back into the labour market. In principle, equal treatment and contract do not go together. The reason for this is that the contract allows different agreements with different beneficiaries. By contrast, equality requires the equal imposition of charges with respect to everyone in the same situation. But equality is not the central standard to be observed in the provision of social services, as help in such cases is directed at different people with their own characteristics. The contract serves to leverage the concrete capabilities of every individual according to their specific opportunities. All individual promotion requires attention in an individual form. As different people have divergent opportunities, they may also benefit from distinct offers in different ways. Accordingly, the principle of equality sometimes involves treating different people differently, so that they can realise their individual capabilities.483 Therefore, it is a peculiarity of all social services that they are never to be provided without distinction with regard to, but always and necessarily only in a way that takes account of the particularities of, the beneficiary.484 From the perspective of further human rights, contractual elements in social administration are also to be considered appropriate. They allow limited self-determination on the part of the benefit recipient and simultaneously facilitate an efficient administration. Consequently, the contract not only serves a goal-oriented and effective administration but also has the potential to cater to the beneficiaries’ desires (“customer focus”).485 On account of this, it is precisely the objective of the New Public Management model, expressed via the efforts undertaken towards case and ____________________ 483 Cf. Walzer, in Krebs (ed.), Gleichheit oder Gerechtigkeit, 2000, 172; Margalit, Politik und Würde, 1997, 11 et seq. 484 Eichenhofer, in Kreft i.a. (eds.), Fortschritt durch Recht, 2004, 168. 485 Grienberger-Zingerle, 2009, 48 et seq.

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contract management, to develop human rights to a greater degree than would be the case under bureaucratic regulation. The labour administration may be considerate of a religious inclination that dictates a specific weekly schedule for an unemployed person (such as observing Saturday as a day of rest)486 if it can take such needs into account from the outset, at the time of the conclusion of the integration agreement, more so than if all had to abide by the same – that is, abstract – criteria. Since the contract individualises and thus helps to tailor every beneficiary’s obligation to their individual capabilities, it is contrary to neither the principle of equality nor to human rights. Rather, precisely to the contrary, the contract proves to be a more appropriate means through which to realise equality and human rights in comparison with standardised rules. Contractual agreements cannot be developed independently from a regulatory framework based on statutory law. This is also true as regards the classical freedom of contract in private law, which can only be implemented and developed thanks to rules enacted and institutions created by the state – the guarantee of justice (Justizgewähr), the monopoly on the use of force, equality and human rights, as well as the requirement for legal and moral order.487 The law determines the admissible contents of contracts, the conditions for their valid conclusion and the consequences of breaches of contract, as long as contractual rules are absent. Private law produces a regulatory framework that surrounds it – as Johann Wolfgang Goethe said, “law alone can grant us liberation.”488 Therefore, contracts not only allow the beneficiary to be held accountable and responsible for his or her cooperation,489 but, at the same time, they urge the social administration to specify its expectations of the jobseeker in a concrete and realistic manner. This relieves the jobseeker from carrying the weight of vague expectations, especially if the recommendations turned out to be unrealistic. Thus, the integration agreement not only shows jobseekers but also the social administration490 as to the ____________________ 486 BSGE 51, 70; 54, 7; 61, 158; Niesel, SGB III, 2012 (6th edition), recitals 55 et seq. with respect to section 144. 487 With the “institutional economics”, economics become aware of the market’s institutional, and therefore legal, contingency. 488 Johann Wolfgang Goethe, Natur und Kunst (poems) (“Und das Gesetz nur kann uns Freiheit geben.”), cited following John Irons, Some thoughts about translating a sonnet into English from a Germanic language, no date given. 489 Knickrehm, in Schuler-Harms (ed.), 2012, 43, 51 et seq.; Kai-Holger Kretschmer, Das Recht der Eingliederungsvereinbarung des SGB II, Berlin 2012. 490 Bundesministerium für Arbeit und Sozialordnung, Moderne Dienstleistungen am Arbeitsmarkt, 2002, 55 et seq.

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paths to take with a view to leading the unemployed back to the labour market. Besides, a contract does not prevent a jobseeker from making efforts to reintegrate into the labour market outside of the contractual terms. That is why each contractual arrangement must also be open to this alternative. The often-voiced objection that contracts provided for in social legislation would be mere “sham contracts”491 bears no close examination. On the contrary, such statements reveal a great deal of denial of the reality, which prevents an unbiased view of the new regulations.

3. Realisation of rights through case management a) An alternative to bureaucracy without state controls under the rule of law? Contracts are an alternative to the bureaucratic organisation of labour administration. They assist the benefit recipients in a concrete and individual way instead of in a general and standardised manner. However, the question must be asked as to whether such a transformation does not also involve the loss of numerous legal guarantees established to control the bureaucratic administration, and thus to protect the citizen. At first glance, this consequence seems to be almost inevitably linked with the inclusion of contractual elements. Yet, the contractual strategies are embedded in general statutory rules.

b) Development of new prospects of action The bureaucratic organisation of the social administration afforded jobseekers no clear perspectives as to what concrete efforts they could make to reintegrate into the labour market. It formulated only the general and abstract expectation that jobseekers would free themselves from the fetters of unemployment as quickly as possible and by their own efforts. Therefore, individuals were to decide upon all paths to this goal. They were under stifling pressure as a result of these expectations, and at the same time found themselves left in the lurch in terms of the job search. The jobseeker may have had individual responsibility; but the statutory law did not concretely specify what had to be done in order to be success____________________ 491 In this way Rixen, in Schuler-Harms (ed.), 2012, 25, 34.

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ful in the labour market. The sole obligation was simply to be successful. This plea becomes stale if the actions leading to success are diffused. If the contract fleshes out and specifies these general duties, this brings about a radical change for the better for the beneficiary. In social administration also, the contract is an element of the broader legal relationship between labour administration and benefit recipient. Within this framework, all those principles must be observed that have been applicable to the relation between administration and beneficiary thus far: fairness, effectiveness, equal treatment, non-discrimination and human rights. Hence, contracts are to be embedded in these rules. Consequently, discriminatory acts violating human rights are prohibited. Since labour administration contracts are thus to be reviewed as to their compatibility with the principles relevant to the labour administration’s conduct, by way of judicial control if necessary, the risks presented for the beneficiary are limited inasmuch as they are controllable by the judiciary. It has already been shown in the past that social work undertaken by an administration represents a concrete form of the application of law. However, social work is not just a highly complex individual process as its operational framework is open and its forms and goals of action are primarily fixed, but not its conditions; but it is also where the law of the social worker-client contact is negotiated, through mutual coordination. In the context of the casework, the social worker proceeds from the client’s wishes and biography and tackles these with his or her professional skills and capabilities, which the administration allows him or her in terms of rights in order to act in the client’s interest. The solutions achieved for the concerned person within the scope of these conditions are realised by way of negotiations throughout. 492 Hence, casework, case management and contract are correlating forms of law and of action.

c) Case management: concretisation of actions in the legal relationship governed by social law To include contractual elements in the social administration means adopting a new instrument to solve a problem rooted in the market society. Since its inception, the market is embedded in a welfare regime in Europe. It had to assist those that were unable to help themselves. In the European tradition, the poor capable of work were entitled to benefits as well. In or____________________ 492 Grace/Wilkinson, Negotiating the Law, 1978.

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der to prevent abuses and to prevent social benefits being obtained by fraud, however, the city of Amsterdam created a workhouse in the sixteenth century. Here, those poor that were capable of working carried out hard, arduous and socially outlawed labour full of deprivation. This was not done with a view to accomplishing these works or to humiliating the unemployed but in order to discourage all those capable of work from unnecessarily claiming public benefits, as, since the beginning of the welfare state, social benefits were essentially meant to enable those capable of working to earn their bread and butter by participating in the labour market – thus, case management had already begun at that time. Similarly, in the presently developed unemployment insurance systems which have existed for about a century worldwide,493 benefits for those who are unemployed and able to work are not granted so as to allow them to lead a life without work. Rather, the purpose of the benefits is to help the unemployed person succeed in their efforts to resume an activity as quickly as possible. Since their introduction, unemployment insurance benefits have been conditional claims; they are means to specific ends intended to ensure that assistance is above all help in self-helping. In this light, contractual elements in the labour administration are the modern alternative to the workhouse. In place of individual deterrence, the precept of reciprocal collaboration applies. Instead of shocking working conditions, appropriate working conditions should be found for every unemployed person. Rather than jeopardising the unemployed person’s human rights, these efforts should aim to develop them. Therefore, contractual elements imply new possibilities that benefit both the labour administration and the unemployed person. This notwithstanding, their relationship is still asymmetrical. Just like in general contract law, the inclusion of contractual elements in unemployment insurance entails risks; to lift them is an elementary dictate of fairness: the labour administration has more information than the unemployed party and is thus in a better position when negotiating conditions. Moreover, at first sight, there seems to be an insurmountable conflict of interests between the parties. This is because the labour administration is anxious to dispose of the unemployed person as a beneficiary as quickly as possible; the unemployed person, on the other hand, may be disinclined to engage in work deemed appropriate, pertinent and reasonable, or may even to claim the ____________________ 493 In keeping with the development in Great Britain which was the first country in the world to introduce unemployment insurance in 1908; Benöhr, Arbeitsvermittlung und Arbeitslosenversorgung, 1991.

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“right to be lazy”494 – which of course cannot exist in the legal order of a working society. As a consequence, the valuations of the benefit recipient and the labour administration might not coincide. It would therefore be an illusion to think that negotiations concerning the conditions of the contract will be an endeavour undertaken in full harmony. One might thus ask: is the inclusion of contractual elements really a realistic path via which to improve the labour administration, or is this pure fiction? When answering this question, one should however bear in mind that both the labour administration and the jobseeker are, or at least must be, ultimately connected by their common interest in overcoming the unemployment as rapidly as possible and in integrating the unemployed person back into the labour market on a permanent basis as promptly as possible. If they succeed, both win; but if not, both have to bear the consequences in different ways. Thus, contractual elements are not an alternative to but rather an auxiliary part of what remains the bureaucratic administration of social services – an instrument that creates new possibilities for the unemployed. It allows assistance to be catered to the individual and creates the expectation that this assistance will be in every respect superior to the bureaucratic and standardised interaction of the past. Negotiations do not take place in a legal vacuum but rather on the basis of the law. In this negotiation process, the maxims of the rule of law (Rechtsstaatlichkeit), equality and human rights also apply. Consequently, the negotiations do not replace the social administration’s public responsibility for the individual beneficiary; on the contrary, they render its exercise more effective and targeted. The hallmark, indeed the trademark of the activating welfare state is its conversion from a wealth transfer orientation to a service provision orientation. If the prevention of social benefits cases and the rehabilitation of those claiming are to substitute social law-related cash benefits, this also changes the requirement profile for social benefit providers. It also has repercussions for municipal social policy. A social policy committed to the prevention of social benefit cases reinforces the precaution, aims to avoid incapacity for work and will provide rehabilitation services in case of impairment to health. Furthermore, it works with the instrument of percentage excess when granting social services – notably in the form of health insurance – so as to increase the recipient’s awareness of the benefit’s economic value and to counteract the waste of public resources. The case law perceives such configurations as the use of an administrative oppor____________________ 494 Lafargue, Das Recht auf Faulheit, 1887.

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tunity, which does not however correspond to a claim on the side of the beneficiary;495 as a result, the labour administration may very well avail itself of integration agreements and case management as activation and integration techniques. The individual has a say in this, but can determine them no more than the administration. The reorganisation of social insurance strengthens these elements within the latter. In terms of rehabilitation and job placement, as well as in the disease management health insurance programmes, the technique of case management finds its way into the provision of social benefits. The objective – the individual’s integration into working life or the overcoming of sickness through behavioural changes – becomes the subject of strategic action by the administration and the beneficiary. Contracts steer this process; they place behavioural duties on the benefit recipient, the breach of which is sanctioned with withdrawal of social benefits.496 Case management is resource intensive because it administratively guides and designs an individual process of learning and behavioural change. The use of resource-intensive services aspires to avoid costs incurred otherwise in case of a long-term or even permanent transfer of cash benefits. The means are concentrated on the beneficiary in the expectation that he or she may secure a livelihood through his or her own capabilities and, in the long run, independently from cash benefits.

____________________ 495 BSGE 104, 185. 496 Eichenhofer, SGb 2004, 203.

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VI.

Sanctions in case of a failure to cooperate

1. Activation and its limits Can the activating welfare state that seeks to amply include the individual in both social and work contexts through integration duties also be established in accordance with individual liberties? This question arises especially in view of the sanctioning of a failure to cooperate. Therefore, the policy of activation also needs to identify and handle conflicts that arise in the context of the use of coercion to enforce acts of cooperation. It is an open question to what extent the recipients of welfare benefits are authorised not to comply with the expectations of cooperation, and what should and may happen if the expectations of cooperation are belied. Will a policy traditionally geared to the protection of weak people be severe enough to completely deny the latter assistance when they, in principle, do not meet the expectations of cooperation? The activating welfare state has to answer these urgent questions. This conflict illustrates the general and fundamental difficulty that every activation effort in the welfare state faces. On the one hand, those in need must be protected and supported individually, and thereby enabled to play an independent and active role in society on the basis of individual preferences. On the other hand, every activating welfare state also requires concrete sanctions as a final consequence, at least in cases when the binding expectations of cooperation are not met. The fact that expectations oblige and the neglect of duty is to be sanctioned does, however, not reveal how far the sanction may and should go. May they be so severe that the genuine goal of social benefits – namely securing freedom and livelihood – is threatened, in its turn? This question can be answered by qualifying the legal nature of the activation offer. Two interpretations come into consideration. For one thing, the activation offer can be construed as the obligation to generate a specific integration result – thus as an “obligation de résultat”; for another thing, it can be interpreted as the obligation to take a particular measure – thus as an “obligation du moyen”.497 ____________________ 497 Dupeyroux/Borgetto/Lafore, Droit de la sécurité sociale, 2008, no. 1611 et seq.; Borgetto, in Conac/Prétot/Tebeul (eds.), Le préambule de la Constitution de 1946, 2001, pp. 127, 135 et seq.

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The state discharges its social duty by providing offers and benefits that are to afford the beneficiary the realistic opportunity to integrate into professional life. However, it does not ‘owe’ integration as an immediate result. The latter does not depend upon the individual, but stands and falls with the beneficiary’s willingness to cooperate. The activating welfare state is thus not able to achieve the integration entirely via its own power, but rather, is at the mercy of the beneficiary to be integrated, and his or her cooperation. For this reason, the statutory law, in section 17 of the German Social Code, book 1 (SGB I), places the obligation on the social administration to grant the benefits due to the recipient in a comprehensive, timely and complete manner, to provide the necessary social services to receive them, to keep the social benefits as accessible as possible and also to keep the physical access to the social administration buildings easy and free from barriers.498

2. The legal nature of sanctions under social law a) The right to work and the obligation to integrate into the labour market In its focus on need and responsibility, the prevailing theory of the activating welfare state stresses the central function of social policy, namely to assist all those that are not able to help themselves. Ultimately however, this effort does not serve a society that is well organised by the state authority, but, for its part, aspires toward the protection of individual liberty. The price of this approach is the possible facilitation of the identification of cooperation or non-cooperation, as well as – in connection with this – the disregard of the social benefit recipient’s individual liberties. On the basis of the right to work, which is recognised and guaranteed as a human right in international law,499 and which is to be understood mainly as a right to pursue work – just as Article 12(1) of the German Basic Law guarantees the “right freely to choose one’s place of work” – the individual is also entitled to the right to concretely decide on taking up work, as well as the content and the scope of the work. Since forced labour is outlawed, the concrete work performance must not be directly compelled by force. Moreover, the right to education does not commit in____________________ 498 Cf. for this Merten, in Eichenhofer/Wenner, Wannagat SGB I, IV, X, section 17 SGB I, recitals 9 et seq. 499 Articles 23 UDHR, 6 ICESCR, 1 ESC and 15 EUCFR; cf. for this in detail supra ch. III 3 b, p. 100.

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dividuals to education – devoid of any individual aptitude or orientation – or to learn skills for an unwanted activity. As the individual’s ability depends on his own willingness, the line between inability and unwillingness is hard to draw in practice. Sanctions that violate civil liberties must and cannot be completely avoided for the sake of safeguarding freedom, to which the activating welfare state is also obliged. In the activating welfare state, the contingency covered by social security is not considered a fate that descends on the aggrieved party through no fault of his/her own and in an uncontrollable manner. Rather, it is regarded as a situation that the persons concerned can influence and control through specific efforts, provided that they cooperate of their own accord in order to overcome their hardship. Case or contract management is intended to overcome social distress: the administration – in particular through social work – and the individuals concerned must collaborate to this end.500 The right and the duty, the benefit claim and the personal effort are combined, closely interconnected and intertwined. Hence, public welfare faces the dilemma: on the one hand, the expectations need to be extended to cooperation; on the other hand, there is a dilemma, since the sanctions in case of non-cooperation are predicated on verifiable misconduct and require a justification that complies with civil liberties – including the freedom to refrain from the cooperation expected by society. In accordance with the liberal maxims and the principle of the rule of law, this must be compensated by a compromise between the conflicting interests of the general public and the individual. The concept of the activating welfare state seeks to make the welfare state benefit the protection and development of individual liberties. The model of communitarianism lays the groundwork for an understanding of social policy that sees its central task in the protection of the individual’s rights and freedoms. This objective requires that the sanctioning of denied cooperation be broadly in line with the right of freedom and take place on the basis of the rule of law. For this to succeed, social rights and duties are combined and correlated. This duty of the social administration, which is confined to the provisions of means, is bound by the human rights of the beneficiary. The social administration must respect the integrity, the health and the conflicting rights of the individual. They represent the limits of social cooperation: disproportionate, unreasonable and unnecessary acts of cooperation ____________________ 500 Ife, Human Rights and Social Work, 2009.

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are just as inadmissible as painful interferences with dangers for life and limb or at the cost of the impairment of the physical integrity501 (section 65 of the German Social Code, book 1 (SGB I)). Social duties are only valid, if they are in conformity with human autonomy, and the need of the latter to take responsibility for themselves. In practice, this entails that no-one can be coerced to do work that is not in line with their freedom and dignity. The classic example is the performance of sexual acts for money: regardless of whether these are prohibited or permitted by law for the sake of the protection of the employee, in the context of the public labour administration, one can neither expect a job placement in the prostitution sector,502 nor can the jobseeker be required to engage in such an activity. The right to refuse work for reasons of conscience (section 275(3) of the German Civil Code), which is ultimately based on human dignity, is recognised and implemented in the labour promotion laws. Likewise, jobs that place the employees in a moral dilemma or one concerning their religious beliefs are not subject of the efforts of the activating welfare state.503 In order to acquire right to withhold the expected cooperation, it is sufficient for the beneficiary to plausibly expound the circumstances that constitute the moral dilemma.

b) Sanctions – punishment or disqualification? The sanctions are not considered a punishment,504 because they do not involve further reaching consequences than the temporary exclusion of the benefit claim. Thus, unlike criminal punishment, they are not imposed in addition to damages in private law. Rather, the sanctions are explained by the consideration that the protection against unemployment is designed and intended for involuntary unemployment, which is, however, excluded if it is self-induced by the beneficiary or caused culpably, that is, intentionally through conduct that does not comply with the rules of the working life. ____________________ 501 Jung, in Eichenhofer/Wenner, Wannagat SGB I, IV, X, section 65 SGB I, recitals 8 et seq. 502 BSGE 103, 134. 503 BSGE 51, 70; 54, 7; 61, 158. 504 Eichenhofer, Sozialrecht, 2012 (8th edition), recitals 479 et seq.; Uwe Berlit/Wolfgang Conradis/Ulrich Sartorius, Existenzsicherungsrecht, 2013 (2nd edition), ch. 23.

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In labour promotion law, the disqualification period is a common control mechanism in case of failure to cooperate as expected. Likewise, sections 60 et seq. of the German Social Code, book 1 (SGB I) specify in detail the conditions and consequences of the failure to cooperate. In terms of all these rules imposing sanctions, it has always been disputed whether the withdrawal of benefits constitutes a sanction or not.505 A sanction only comes into consideration in case of the beneficiary’s fault, and usually even presupposes at least conditional intent.506 Furthermore, a subjective standard is applied to determine whether such a charge is founded.507 Such a classification of the sanction as a punishment was still pertinent at a time when “anti-social behaviour”508 was a criminal offence. It was considered as conduct that triggered the need for social welfare, such as idleness, begging, vagrancy or prostitution, and therefore as a preparatory act for criminal offences. Such behaviour, which preceded the drawing of social benefits, was deemed worthy of punishment and it was expressly punishable and sanctioned with disadvantages as a consequence. At that time, the criminal sanction was not part of the law of social benefits. By contrast, the activating welfare state integrates a reaction to the breach of the non-binding duties of cooperation in its benefits law, and leaves the task of sanctioning to the personnel employed by the benefit providers. In the activating welfare state, the sanction functions as an exclusionary criterion for a social benefits claim. Nevertheless, the failure to cooperate or the disqualification period are predominantly not regarded as punishment, but as sufficient grounds to deny a statutory social benefits claim or as a blanket compensation of the damage in favour of the unemployment insurance.509 Therefore, the reduction of the benefits is presented as a reaction to the breach of a nonbinding duty. It can be explained by the fact that the benefits are only granted, if the expected act of cooperation is performed, or in case of involuntary unemployment. By contrast, the measures of the complete or temporary withdrawal of benefits due to a failure to cooperate suggest that the beneficiaries themselves have caused the contingencies; for that reason, any insurance coverage whatsoever is cancelled because of their behaviour. ____________________ 505 506 507 508

Davilla, 2011, 246 et seq. BSGE 95, 176. Ibid. Cf. Ayaß, “Asoziale” im Nationalsozialismus, 1995; Korzilius, “Asoziale” und “Parasiten” im Recht der SBZ/DDR, 2005. 509 BT-Drs. 15/25, 31.

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The sanctions in the field of labour promotion always involve the disentitlement of the beneficiaries.510 This was already included in the Beveridge Report. The recourse to ‘earnings disregards’ in order to encourage low-earning jobseekers to work is a prevalent measure in the area of labour market policy. However, one must consider the fact that there exist extremely low rates, which are clearly below the minimum subsistence level, and a rule, which provides for the full deduction of the allowances outside of the benefits whenever this limit is exceeded.

c) Sanctioning and assistance This rule is criticised, insofar as the deduction would deter the beneficiaries from taking up work rather than encouraging them to do so. It would be a punishment, because a statutory claim would not be awarded due to the behaviour that gives rise to the sanction. This would amount to the loss of a right. Yet, one can advance the counter-argument that the decision to take up employment is not at the discretion of the jobseekers but that they also must accept minor and low-paid jobs. Since any kind of employment is contingent on the cooperation of two persons, the individual does not have the freedom to decline reasonable work. Hence, the right to work comprises the duty to work, if there is the realistic chance to do so and if the labour administration creates and offers such opportunities. New Labour therefore changed the approach of activating and empowering the jobseeker. In opposition to the Conservatives, it no longer focused on sanctions, but on personal assistance and support. This is driven by the blatantly suggestive question: “How can we help you, becoming more independent?”511 In addition, New Labour attempted to economically upgrade the work performance by introducing minimum wages and tax advantages for the working population, notably for those with a family (to make work pay).512 This was done in the expectation that the social benefits system itself might also provide an incentive to take up work.

____________________ 510 Berlit, in Münder, LPK-SGB II, 2011 (4th edition), section 31, recitals 8 et seq.; Lundy, in Harris (ed.), 2000, 291, 308. 511 Lundy, in Harris (ed.), 2000, 291, 323. 512 Lundy, in Harris (ed.), 2000, 291, 324 et seq.

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d) The effects of sanctions The observation of the sanctioning practice of the labour administration reveals a certain hesitance and reluctance. The sanctioning is generally considered as an ultima ratio – thus as a last resort.513 De facto the addressees are rather younger than older jobseekers; the central idea is to perceive the beneficiary as a participant in the labour market – the principal obstacles for accepting a new employment are a change of residence or a massive loss of income.514

3. The rules for sanctions a) Sanctions and the breach of non-binding duties to act The historically most developed legal regime for the sanctioning of infringements against activation measures can be found in the field of unemployment insurance. Its rules require the moment of becoming unemployed as a contingency covered by social security and insurance as well as the availability of the unemployed person. Both requirements cannot be evaluated independently from the beneficiary’s conduct that leads to the state of unemployment. In British law, similarly to German law,515 unemployment gives rise to the temporary forfeiture of the unemployment insurance benefits, if it is caused by misconduct in the employment relationship, voluntary resignation from the job, the failure to fulfil the instructions of the state employment agency or the non-acceptance of a reasonable work or training opportunity.516 The sanction consists in the temporary refusal of insurance benefits. Hence, sanctions do not merely accompany the social benefits claim, but restrict it like a negative criterion. The mentioned circumscriptions are characterised by their considerable open-endedness. For their part, they are limited by a counter-principle, which is formulated, however, in an even more general and open manner than the grounds of exclusion from benefits. Accordingly, there is no temporary exclusion of benefits, if the beneficiary can adduce a sufficiently ____________________ 513 514 515 516

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Koch/Kupka/Steinke, Aktivierung, 2009, 124 et seq. Ibid., 128. Eichenhofer, Sozialrecht, 2012 (8th edition), recital 479. Child Poverty Action Group, Welfare Benefits and Tax Credits Handbook, 2007/2008 (9th edition); Barendt/Ogus/Wikeley, The Law of Social Security, 2002 (5th edition), 362 et seq.

The rules for sanctions

good reason517 for his/her conduct. Namely voluntary resignation is justified and thus not sanctioned, if it pre-empts a termination of the employment contract threatened to the employee for company-related reasons.518 Likewise, the loss of one’s job due to conduct in breach of the employee’s duty does not entail a sanction in the event that this behaviour was a reaction to a breach of duty by the employer. Sanctions for not accepting a job offer cannot be imposed in spite of the refusal of the employment by the jobseeker, if the employee can justify it by invoking religious or conscientious grounds.519 The principle of the rule of law requires that acts of cooperation may only be prescribed as conditions of the benefits claim if the provider has explicitly designated the expected activity beforehand.520 In principle, a sanction can only be envisaged as a counter-reaction to a concrete duty to act, the elements of which are described in advance and which has been verifiably imposed on the beneficiary, who is obliged to cooperate. There can be no sanction without a duty to act that is imposed in a correct and concrete manner. If the labour administration demands personal efforts, it must specify and outline their substance prior to this. In this context, the case law of the courts recognises an “interest of the responsible unemployed person in an individual search for employment on as autonomous a basis as possible”.521 Hence, challenging an individual’s conduct may only be carried out on the basis of prior promotion of the individual’s interests. If the labour administration has nothing to offer to the jobseeker, sanctions are also out of the question. The insured person is not obliged to perform the required acts of cooperation, if the latter are not designated and the admonition, usually in writing522 and only exceptionally in oral form523 , about the legal consequences of the refusal is omitted.524 That is because it has to be clarified whether cooperation, and, if so, which type of cooperation is expected, and in which way the failure to cooperate will be sanctioned in case of refusal. ____________________ 517 Eichenhofer, Sozialrecht, recital 480; cf. BSGE 76, 12; 93, 105; 95, 8; BSG SGb 2000, 327; 2006, 541. 518 BSGE 104, 90; 97, 1; 95, 232; 93, 159; 92, 74; 89, 243; 66, 94. 519 Barendt/Ogus/Wikeley, 372; BSGE 51, 70; 54, 7; 61, 158. 520 BSGE 95, 176. 521 Ibid., 189 (“Interesse des mündigen Arbeitslosen an einer möglichst wenig fremdbestimmten eigenen Beschäftigungssuche”). 522 BSGE 105, 297. 523 BSGE 102, 201, 210, if it is issued in direct connection with the assignment of the task and in an unambiguous and clear manner. 524 BSGE 105, 297; OGH 10 ObS 136/07 SSV NF 22/12.

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Accordingly, challenging compliance means defining the act of cooperation concretely and precisely. Acts of cooperation are only reasonable, if they take into consideration the “specific physiological and physical condition of the beneficiary”.525 Consequently, an important factor to be taken into account is the subjective, individual capacity of the beneficiary who is under a duty to cooperate. In the context of the framework of the activating welfare state, and in accordance with this system of sanctions, which exists since the introduction of the unemployment insurance, written directives and behavioural recommendations are underpinned by sanctions; these directives and recommendations are formulated on the basis of the integration agreement and within the framework of an assistance plan that a person with disability has concluded with the pension insurance fund with respect to his/her reintegration.526 British law, which allows the withholding of benefits for a period of from one to twenty-six weeks as determined by the insurance itself, provides for the possible exclusion of benefits for two or four weeks in the case of sanctions for breaches of the integration conditions.527 Furthermore, sanctions can only be imposed in the event of culpable conduct. This must be measured against a subjective-personal standard, by reference to what can be legitimately expected from the beneficiary.528 As the sanction consists in the exclusion of protection with a view to securing one’s livelihood, the sanction to be imposed must be reasonably proportionate to the required behaviour. The withdrawal of the means to secure one’s livelihood is disproportionate to the failure to cooperate, if the sanction merely concerns such non-binding obligations that precede the job placement or other measures of labour market integration.529 As far as the sanction aims to penalise the misconduct of one member of a household (Bedarfsgemeinschaft), it must not directly or indirectly affect other member of this community as innocent third parties. Consequently, a sanction is also inadmissible, if breaches of duty by young people are sanctioned in such a way that the parents must secure the adolescent’s livelihood, although their economic situation does not permit this. This notably applies to the very severe sanctions regime under section 31a(2) of the German Social Code, book 2 (SGB II). ____________________ 525 OGH 10 ObS 136/07 SSV NF 22/12. 526 Child Poverty Action Group, Welfare Benefits and Tax Credits Handbook, 2007/2008, 400. 527 Barendt/Ogus/Wikeley, The Law of Social Security, 2002, 360. 528 BSGE 95, 176, 187. 529 Berlit, in Münder (ed.), LPK-SGB II, section 31, recital 13 et seq.

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Furthermore, sanctions should not be left to the discretion of the individual case manager; otherwise the equality of the sanctions would be jeopardised, the social administration would thus disregard the rule of law and there would be the danger of corruption. Less sanctioning would therefore be ‘more’; a system of fines with a progressive practice of sanctioning depending on the seriousness of the offences and as differentiated as possible should surely to be preferred to a practice based on partial reductions (30%, 60% or 100%) (section 31a of the German Social Code, book 2 (SGB II)). That is because the breach of duty bears no proportion to individual needs but, in concreto, is made conditional thereupon by virtue of the reduction on a percentage basis.

b) Sanctions in the case of benefits securing one’s livelihood Sanctions that involve the reduction or the suspension of the social benefit claims securing one’s livelihood must be amenable to evaluation and justification from the perspective that the sanctioned breach of duty warrants the withholding of these benefits.530 In this respect, it is important to consider benefits that are necessary to protect the human dignity. To be more precise, they must be granted for the sake of securing a life in dignity. Since not even a felon serving a life sentence is denied this protection and the provision of social benefits also serves to prevent the recipient from criminal behaviour or from entering the shadow economy,531 the sanction must be carefully appraised in view of the actual and central objective of social welfare law: the goal of helping those in need overcome major hardship – also in order to protect the general public from harms that can trigger pauperisation – demands the utmost caution with respect to the development of the legal regime of sanctions. If a person’s fundamental distress compromises public welfare, assistance needs to be granted, at least on loan. Sanctions would then result in debts vis-à-vis the social administration, which are generally difficult to enforce. The relationship between means and ends must always be preserved also in terms of the sanctioning of expectations of cooperation. One can never impose a penalty on the grounds that the beneficiary would not have fulfilled his/her non-binding obligation: this breach may be adequately sanctioned, but, taken by itself, it does not justify the loss of a right to se____________________ 530 Berlit, ZfSH/SGB 2012, 561, 567. 531 Ibid., 563 et seq.

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cure one’s livelihood. This represents a fundamental human right to care and assistance (Article 25 UDHR) and it follows from the human dignity. Therefore, it is just as inalienable as the latter. Since every sanction of non-binding obligations with respect to the provision of benefits securing one’s livelihood has a direct impact on human existence, it must be asked whether judicial privilege (Richterprivileg) applies. To be sure, sanctions in the law of the securing of one’s livelihood are not criminal sentences. They are, however, the equivalent of the latter as far as their preconditions and effects are concerned. This entails consequences for the legal requirements under which the sanctions can be imposed and for the organisation of the decision makers. From this, it follows that, in terms of the requirements, all facts must be submitted and, if necessary, proven by the sanctioning authority, and the authority that imposes the sanction must decide upon occasionally severe interferences in complete judicial independence. Ideally, the decision by an independent court would have to be preferred to any decision by the labour administration, which is subject to instructions and obliged to attain economic goals. Under the rule of law (Rechtsstaat), the benefit administration may be under comprehensive judicial control; but since sanctions concerning the benefits securing one’s livelihood directly affect the right to subsistence, independent courts must take these decisions, just as other public decisions pertaining to the right to subsistence – notably the imposition of penalties.

c) Avoiding external effects of sanctions When sanctions are imposed on the beneficiary in the form of the reduction of benefits securing one’s livelihood, usually third parties are also affected by the sanctioning – namely persons that have to pay alimony to the beneficiary by virtue of family law as spouse, life partner, parent or child, or those that are required to support the sanctioned person as a member of the household (Bedarfsgemeinschaft). Under these conditions, a sanction can affect third parties, even though they do not have to answer for the breach of the non-binding obligation. The sanctioning of the neglect of duty, which, however, burdens innocent third parties, must also be justified in view of these persons. The sanction is directed against the perpetrator who acts culpably; it must not extend to the third parties. This consideration sets further limits to every sanction of breaches of cooperation duties.

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d) Reductions on a percentage basis or uniform reductions? A further problem connected with the sanctioning of breaches of cooperation duties follows from the rule according to which the benefits granted are reduced on a percentage basis (30%, 60% or 100%). This rule is contrary to the fault principle because it burdens those most in need to the greatest extent, and sanctions those less in need only in accordance with the amount of their benefits. However, the sanction does not primarily have to be in relation to the amount of the benefits drawn, but rather in relation to the concrete breach of the duty of cooperation. From this follows furthermore that the different breaches of such a duty must be sanctioned in a different manner, depending on the intensity that the central goal of the benefits, namely the overcoming of the dependency on social benefits, involves. Against this background, breaches of the non-binding obligation to be present at a particular place at a specific time at the social administration’s premises carry much less weight than the refusal to accept a reasonable and adequate job of which the beneficiary can be assured in case of acceptance. To not start a training measure must equally be sanctioned in another way than the breach of conditions within the framework of a strategy for the job search stipulated in the cooperation agreement. A differentiated schedule of fines geared to the individual acts of cooperation must substitute the blanket and global reductions on a percentage basis. The amounts, which are envisaged as sanctions, should make the beneficiary feel them, but, plausibly, should not destroy livelihoods or be exorbitant. Above all, they should treat the various breaches of non-binding obligations differently, depending on their distinct seriousness; on the other hand, the persons that contravene the individual behavioural requirements should, in principle, be treated equally, regardless of the amount of their benefit claim to secure their livelihoods. The applicable law of sanctions does not come close to meeting many of these requirements. Hence, generally speaking, it needs to be radically reformed from top to bottom.

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VII.

The level of the benefits in the activating welfare state

1. The research question If the granting of social benefits in the activating welfare state is necessarily contingent upon acts of cooperation of the beneficiary, the final question arises as to the scope of the social responsibility of society for the individual. The issue of the activating state thus also concerns the level of the benefits provided in the welfare state. This becomes especially clear in respect of provision for the elderly. The transition from securing the living standard to the three-pillar model was synonymous with the partial withdrawal of pension insurance from the old age provision. The public responsibility assumed by the pension insurance may very well continue to have an effect. However, it needs to be, and is also designed to be, supplemented by self-provision. Percentage excesses and individual contributions within the health insurance are surrogates in order to make the insured person realise that the benefits to be provided by the health insurance have considerable value. They also attempt to create incentives not to make use of the medical services – like the practice fee, which, meanwhile, has now been abolished because of excessive administrative costs and insufficient steering effect. University tuition fees ensure that the performance awareness of those that teach in the educational institutions is increased and, at the same time, that the students that benefit from these services become aware of their economic importance. Such a decision begs the fundamental question: what else must the welfare state provide within the framework of an approach based on activating the beneficiary, if the welfare state assigns financially effective duties of cooperation to the individual in almost every branch of benefits? In that case, is a welfare state that can only thrive in cooperation with the beneficiary still necessary at all?

2. Activation and participation as a cooperation relationship The basic approach of the activating welfare state establishes a cooperation relationship between the social benefit provider and the beneficiary. Such an approach can neither justify the complete withdrawal of the welfare state from its responsibility, nor a libertarian position that defines 156

Reciprocity and individual contributions to social insurance

self-responsibility as a status, which leaves the individuals to their own devices and thus to take care of themselves. In this way, the activating welfare state does not stand for a minimal state. Nor does it support the attempts that count toward the state’s substantial withdrawal from its traditional social responsibility. This is the message of neoliberalism, but not that of the activating welfare state, which is committed to the idea of communitarianism. Hence, the central idea of the activating welfare state does not primarily consist of the repression of the general public’s social responsibility, but of the insight the social objectives can only be effectively achieved through the collaboration of the administration and the beneficiary. This is what the concept emphasises, but it does certainly not make any absolute statements as to the level of social security and spheres of responsibility. The approach stresses the interdependence and cooperation of the administration and the beneficiary. As a consequence, the principles of the activating welfare state do not allow any insights into the absolute level of the targets of social security for individual branches of social benefits.

3. Reciprocity and individual contributions to social insurance However, the model of the activating welfare state presents a suitable foundation for a socio-political approach that co-payment as a central contribution to the social success of social benefits law. This is why this approach not only facilitates the division of tasks between the administration and the beneficiary, but also extends the contribution of the beneficiary in the sense of a financial participation. Auxiliary protection through private or company old age provision, co-payments, practice fees and university tuition fees corresponds to the logic of the activating state, since it follows its underlying idea, namely, no rights without responsibilities. Reciprocity and thereby some commutative justice is thus inherent in every approach of the activating welfare state: its overall goal is to modify the workings of an abstract distributive justice with a view to creating incentives for behaviour within the meaning of distributive justice.

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VIII.

Conclusion – the activating welfare state and the law

The activating welfare state is the contemporary form of the European social model. It corresponds to the European precept of creating the internal market for the sake of the facilitation of social purposes. Started by EU initiatives, the activating welfare state has evolved into, and has asserted itself as, the determining model of employment policy and the modernisation of social protection in the EU. Based on the experiences of good practice in the field of employment and social policy of the most developed Member States, the activating welfare state has by now become established as the model of contemporary social policy all over Europe. Having recourse to the open method of coordination, in the past decades, numerous Member States have included activating regulations in their social legislation – those that had been identified as “best practices” in other states. The activating welfare state has evolved into the socio-political model of the EU and, accordingly, many Member States have implemented different parts of its social benefits law through numerous reforms in the past decades. The activating welfare state is predicated on the elementary rule, acknowledged for 200 years, that the individual capable of and destined for gainful work is compelled to perform it in order to secure the necessities of life. In doing so, individuals may count on the support of society, but they cannot deny the support, once granted, the necessary cooperation. The activating welfare state proceeds from the assumption that those who can be reasonably referred to the labour market have no need of social benefits and can earn their living through gainful employment, in accordance with the social rule of a working society. This rule explains the model of the activating welfare state: its services are primarily designed to assist those that cannot work. By contrast, those able to work are to be encouraged through individualised and targeted aid to take up, maintain or expand paid work. The non-acceptance of employment opportunities entails sanctions. This approach reposes on the call for taking responsibility for one’s self and for one’s own way of life. This involves the obligation to refrain from deliberately and purposefully causing the contingency covered by the social security. In addition, self-responsibility is the foundation of acts of cooperation to overcome individual social benefits cases. In this activating welfare state, the cooperation of the beneficiary after the provision of social bene158

Conclusion – the activating welfare state and the law

fits becomes a requirement for them to be granted. The beneficiaries’ claims are contingent on their collaboration. Such an approach is not neoliberal but communitarian. That is because it is based on the integration of every individual in the life of society; this entails rights and duties. Accordingly, self-responsibility is linked to the assistance by society. The exclusion of benefits is therefore justified, if the entitlement to the benefits is induced intentionally, but is not justifiable, if the contingency is caused by negligent conduct. The concept of the activating welfare state raises awareness for fraud and abuses and seeks to tackle them by extending the duties of declaration and disclosure for the beneficiaries who are thereby placed under general suspicion. The activating welfare state deals with social benefits cases in a concrete and individual manner and according to the standards that are tailored to the individual’s needs. In this way, it promotes case and contract management. These techniques of social work are employed within the legal framework of the social administration. The concept of the activating welfare state thus implies sanctions for failure to cooperate. However, they must be restricted and controlled in accordance with the rule of law. Notably, the sanction must be proportionate to the breach of duty, and one must bear in mind that the refusal of social benefits claims encroaches on every individual’s right to subsistence. Therefore, every limitation of the benefits needs to be made consistently and to be reconciled with this right. The sanctions must be foreseeable, accessible, moderate and clear in terms of their conditions and consequences. Moreover, they must comply with the principle of equality. The social benefits cases are no longer perceived as a given, which the administration and the beneficiary must simply accept. Rather, they are recognised as a social situation that emerges in individual circumstances that have to be overcome through coordinated and targeted measures. Case and contract management are the appropriate instruments for such an objective and strategy. Sanctions must reinforce the urgency of the expected acts of cooperation; they can be validly imposed within the limits of the proportionality, if their requirements are clearly defined by the administration beforehand and are enforced in conformity with the goal pursued by the social benefits, namely to facilitate securing one’s livelihood and participation. As interferences with the right to subsistence, every sanction requires circumspection. The sanction needs to be proportional to the breach of duty. In this respect, less is often more! The sanction and the breach of duty must correspond with each other. A differentiating sanctions regime based on breaches of duties, which is organised in form of a 159

Conclusion – the activating welfare state and the law

schedule of fines and includes uniform amounts, is to be preferred to such blanket reductions on a percentage basis as are common today – in fact, such a regime is indispensible on grounds of the principle of the rule of law. The activating welfare state establishes a legal relationship geared toward the cooperation of the administration and the individual beneficiary. It grants rights and imposes duties on both sides. Taking responsibility for one’s self does not mean helplessness and being on one’s own, but rather the requirement for the beneficiary to be willing to cooperate with the administration. In such a welfare state, the statutory law is complemented with the contract, since the provision of benefits is characterised by social work instead of its implementation as a matter of routine. The law no longer has to secure claims in the first place, but rather participation and involvement. A finality programme takes the place of the conditional programme. As a result, the law of the activating welfare state transforms the central forms of action of the welfare state. Unconditional obligations to permanently prevent social hardship are substituted by the concrete and individual negotiation of modes of behaviour, with a view to overcoming situations of distress. Statutory law is complemented by the contract as an instrument to organise the welfare state and its possibilities are thereby enhanced. The rights to social benefits of the beneficiaries are bound to an obligation to act that is imposed upon them. Hence, the activating welfare state entails a fundamental reform of the welfare state – not because of its contents and numerous details, but because of its fundamentally changed legal structures.

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172

Index

A New Deal for Welfare, 59, 92 abilities, 85 able to work, 49, 91, 93, 94, 100, 101, 107, 126, 172, 194 absences from work, 58 abstract expectation, 170 abuse, 11, 22, 83, 106, 137, 148, 151 accident insurance, 85, 130, 139 accountability, 53 Act of Settlement, 45 activating welfare state, 5, 7, 12, 13, 19, 20, 21, 22, 23, 26, 27, 29, 33, 34, 38, 73, 74, 76, 79, 80, 82, 90, 92, 99, 102, 105, 108, 109, 115, 119, 128, 143, 148, 151, 153, 155, 174, 176, 178, 179, 180, 181, 182, 186, 191, 192, 194, 195, 196 activation, 9, 10, 19, 20, 21, 22, 26, 28, 30, 39, 40, 43, 58, 65, 67, 69, 74, 75, 78, 82, 91, 94, 95, 96, 101, 104, 106, 107, 108, 126, 174, 176, 184, 199, 203, 210 adaptability, 28 administration, 11, 12, 20, 22, 38, 39, 51, 52, 53, 60, 61, 64, 67, 68, 71, 82, 125, 135, 138, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 178, 179, 180, 183, 184, 185, 186, 187, 188, 189, 190, 192, 193, 195, 196, 200 administrative recommodification, 95 adult worker approach, 90 advanced training, 44, 76, 88, 133, 164 after-school care centres, 89 Agenda 2010, 68, 70, 199, 207 alcohol abuse treatment, 146 Amsterdam, 172, 211 anti-discrimination laws, 167

anti-social behaviour, 132, 182 apprenticeship, 78, 85, 164 Aristotle, 111 assistance, 7, 12, 19, 20, 22, 43, 47, 53, 56, 57, 59, 60, 61, 62, 65, 67, 69, 70, 71, 74, 75, 76, 78, 80, 82, 83, 85, 88, 89, 90, 91, 93, 96, 99, 100, 105, 106, 109, 124, 132, 139, 153, 154, 156, 157, 162, 163, 166, 172, 174, 176, 183, 186, 188, 195, 200, 208 asymmetrical, 157, 173 authoritarianism, 49, 113 average income, 42 bargain, 160 basic protection, 158 basic security benefits for jobseekers, 75 basic security at old age, 101 basic security in case of reduced capacity for work, 101 Basic skills at work, 51 Beck, Ulrich, 97, 145, 199 beggars, 60, 83 Belgium, 63 Berlin, Isaiah, 143, 200 Beveridge, William H., 85, 88, 92, 154, 182, 200 birth rate, 72, 116 Blair, Tony, 30, 31, 44, 55, 56, 92, 113, 114, 200, 204 bound to a path, 55 breadwinner approach, 90 bridges, 57, 71, 94 Brown, Gordon, 44 budgetary policy, 27 Bureau des Pauvres, 61

173

Index bureaucracy, 12, 147, 170 business start-ups, 28 Canada, 41, 62 capable of work, 29, 38, 45, 47, 49, 58, 59, 60, 61, 62, 75, 86, 90, 93, 100, 105, 118, 122, 143, 148, 153, 172 capacity, 19, 24, 38, 43, 58, 70, 78, 94, 97, 101, 186 capital market, 72 capitalism, 32 care in crèches, 89 care providers, 151 case management, 12, 71, 76, 147, 170, 171, 172, 174, 175 causing the contingency, 132, 195 change of residence, 184 Charlemagne, emperor, 61 child allowances, 98 child poverty, 58, 59, 60 childcare, 58, 75, 88, 89, 93, 117 child-rearing periods, 65 Christian, 60, 61, 82, 83, 201, 208, 210 church property, 61 Churchill, Winston, 85 civic community, 84 civilisation, 84 cleanliness, 113 Code du Travail, 63, 64 cohesiveness, 86 collective agreement, 50, 64, 73 Comité de Mendicité, 61 common good, 108, 111, 112 communication of knowledge, 116 communitarianism, 79, 110, 111, 112, 113, 180, 192 community of solidarity, 114, 133, 136, 137, 141, 147 commutative justice, 193 company pension schemes, 68, 72

174

compensation (Enterprise Allowance), 51 competition, 26, 66, 96 compliance, 53, 109, 113, 140, 148, 161, 186 compliance with rules, 141, 181 compromise, 160, 179 compulsory insurance, 87 compulsory labour, 122, 123 concomitant obligations, 23 conditional programme, 196 conditionalisation of claims, 91 conditionality in terms of programming, 155 conditions of work, 120 conflict of interests, 173 conscientious grounds, 185 consensus building, 155 conservative, 44, 54, 55, 80, 102, 103, 105, 107, 108, 111, 114, 115 consideration, 71, 76, 77, 90, 93, 104, 106, 108, 126, 135, 143, 145, 158, 160, 163, 176, 181, 186, 189 consumption, 30, 79, 128, 137, 142, 150 contingency, 11, 132, 134, 135, 136, 137, 144, 151, 169, 179, 184, 195 contract, 11, 53, 56, 58, 92, 93, 123, 124, 131, 136, 144, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 165, 166, 167, 168, 169, 170, 171, 172, 173, 179, 185, 195, 196, 202 contribution, 21, 31, 36, 43, 67, 68, 69, 77, 81, 94, 101, 107, 109, 113, 192 cooperation, 10, 11, 12, 13, 21, 23, 41, 73, 106, 116, 124, 125, 133, 139, 143, 159, 161, 162, 163, 166, 169, 176, 178, 179, 180, 181, 182, 183, 185, 186, 188, 189, 190, 191, 192, 194, 195, 196 cost awareness, 73 court, 163, 189

Index creation of value, 99, 100 crime, 59, 114, 131 criminal law, 136, 138 criminal punishment, 181 cultivation, 84 cultural institutions, 76 customer focus, 168 customer orientation, 54 damages, 136, 181 danger that the injured person him- or herself created, 130 dangers, 32, 86, 141, 147, 180 day of rest, 168 debt, 24, 34, 40, 76 decency, 54 decentralisation, 39 decommodification, 94, 95 deliberation, 27 demand, 20, 28, 35, 50, 63, 69, 133 demoralization, 46 Denmark, 5, 9, 22, 29, 40, 41, 42, 67, 100, 199 dependency mentality, 119 deregulation, 104 destitute, 47 deterrence, 173 development of wages, 35 diligence, 54, 79, 148 disability, 27, 28, 37, 40, 58, 74, 75, 186 disability pensions, 40 disciplining, 48, 61, 105 discrimination, 25, 42, 120, 122, 123, 167 disease management programmes, 175 disentitlement, 182 dishonesty, 150 dismissal, 41 disqualification, 12, 53, 131, 181, 182

disqualification period, 53, 131, 181, 182 Disraeli, Benjamin, 59 distribution in a non-selective way, 98 distributive justice, 193 domicile, 144 drugs, 54, 113 Durkheim, Emile, 111 duties, 11, 12, 32, 47, 55, 64, 74, 77, 86, 88, 89, 90, 95, 106, 110, 123, 124, 125, 126, 139, 142, 150, 152, 154, 155, 160, 163, 166, 171, 175, 176, 180, 182, 184, 189, 190, 191, 195, 196 duty to act, 185 Early Modern Ages, 19 early retirement, 33 East-West division, 66 economic cycle, 69 economic growth, 24, 35 economic policy, 122 economies, 30 economy, 25, 28, 29, 35, 44, 45, 66, 85, 86, 97, 141 education, 19, 28, 50, 51, 57, 61, 78, 91, 97, 116, 120, 121, 139, 147, 162, 163 education provider, 163 effectiveness, 59, 171 efficiency, 29, 33, 55, 73, 163 efforts, 6, 22, 23, 30, 35, 36, 38, 39, 41, 42, 48, 54, 58, 65, 71, 72, 75, 78, 91, 94, 95, 96, 100, 110, 115, 117, 118, 121, 151, 162, 165, 168, 170, 172, 179, 181 egalitarian, 33, 107 Egypt, 61 employability, 28, 41, 94 employer, 37, 38, 41, 47, 88, 101, 123, 131, 136, 165, 166, 185 employment, 9, 19, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 43, 47, 49, 51, 53, 56,

175

Index 58, 59, 60, 63, 66, 68, 69, 72, 74, 75, 87, 88, 89, 90, 92, 95, 97, 98, 100, 115, 117, 118, 120, 121, 122, 123, 124, 131, 136, 138, 144, 148, 150, 153, 156, 157, 162, 166, 183, 184, 185, 194, 206, 211 Employment and Support Allowance, 58 employment contract, 131 employment relationship, 41, 47, 74, 123, 124, 131, 144, 184 empowerment, 19, 108, 131, 167 enabling, 19, 57, 81, 107, 108, 112, 139, 143, 162 English Poor Law Amendment, 47, 49, 59 entitlement, 53, 81, 109, 123, 124, 195 entrepreneurship, 28 equal opportunities, 28 equal treatment, 157, 161, 167, 171 Esping-Andersen, Gøsta, 37, 44, 46, 102, 104, 145, 203 Etzioni, Amitai, 56, 110, 111, 112, 113, 203, 210 EU, 5, 6, 9, 15, 22, 24, 25, 27, 29, 30, 34, 66, 81, 91, 115, 116, 117, 119, 120, 158, 194, 199, 202 Euro, 24, 206 European employment strategy, 27, 29 European Social Charter, 15, 122 European Social Fund, 27 European social model, 33, 160, 194 evidence, 66, 80, 133, 136, 137, 164, 204 exclusion, 25, 26, 31, 63, 94, 130, 146, 181, 185, 186, 187, 195, 205 expenditure of time, 76 expert culture, 84 extension of working lives, 33 Factory Act, 121 fair labour, 122 fairness of wages, 50

176

falsehood, 150 family, 10, 19, 31, 33, 36, 45, 48, 51, 57, 64, 77, 79, 89, 90, 106, 119, 148, 149, 150, 158, 183, 189 family care, 48 fate, 47, 69, 70, 85, 87, 179 fault principle, 190 felon, 188 Fichte, 83, 203 Filles du Roi, 62, 207 finality programme, 196 financial service, 151 financing, 52, 68, 101, 117, 128 flexibility, 28, 41 flexicurity, 28 forced labour, 124, 159, 179 France, 5, 9, 22, 29, 34, 60, 62, 63, 128, 200, 204, 207 Francis I King of France, 60 fraud, 11, 22, 92, 114, 148, 150, 151, 172, 195 freedom, 11, 54, 103, 106, 107, 109, 111, 112, 119, 123, 124, 127, 143, 144, 145, 147, 156, 158, 162, 163, 169, 176, 179, 180, 183 freedom of choice, 54, 107, 162, 163 freedom of desire and choice, 163 French law, 76 French Revolution, 61, 63, 85, 140 Friedman, Milton, 112 full employment, 24, 28, 88, 90, 121, 122 full-day-care, 75 further development, 66, 67 future generations, 72 gainful employment, 29, 90, 131 gambling, 137 GDR, 15, 16, 66 general suspicion, 152, 195 general wealth, 26

Index German pension reform of 2000/2002, 67, 72, 73 German reunification, 66 Germany, 9, 15, 20, 22, 34, 36, 42, 65, 66, 69, 75, 76, 98, 113, 200, 201, 204 Giddens, Anthony, 31, 80, 109, 139, 141, 153, 162, 204 Goethe, Johann Wolfgang, 113, 169 good society, 48, 95, 110 Great Britain, 16, 44, 96, 172, 204 Greece, 61 growth, 24, 25, 31, 34, 41, 44, 55, 67, 68, 72, 117, 118 hardship, 32, 99, 114, 179, 188, 197 Hartz, Peter, 66, 68, 69, 98, 201, 206 Hayek von, Friedrich A., 112 health, 19, 38, 39, 43, 61, 65, 66, 67, 68, 73, 78, 88, 98, 104, 118, 120, 122, 126, 128, 130, 137, 139, 140, 142, 147, 164, 174, 180, 191 health insurance, 65, 66, 73, 78, 139, 140, 174, 191 healthcare reform of 2004, 73 Hegel, Georg Wilhelm Friedrich, 84, 143, 144, 205 hierarchy, 155, 157 homini oeconomici, 80, 148 hôpital, 61 hospital, 61, 73, 80, 148 household, 187, 189 housing benefit, 150 human capital, 96, 124 human dignity, 97, 180, 188 human rights, 11, 65, 120, 122, 123, 125, 142, 143, 157, 159, 161, 168, 169, 171, 173, 174, 180 humanitarianism, 48 idleness, 61, 114, 182 illiteracy, 84 ILO, 16, 121, 134, 159, 205

immigration, 41, 65, 162, 207 incapable of work, 62, 85, 101 inclusive society, 57 income, 10, 34, 36, 37, 38, 42, 44, 45, 50, 52, 58, 64, 70, 78, 79, 95, 97, 98, 99, 118, 132, 141, 150, 154, 162, 184 indemnity, 131, 132 individualisation, 65, 74, 76, 108, 144, 163 industrial society, 49, 97 insurance principle, 52 integrated care, 10, 68, 73, 74 integration, 15, 19, 22, 39, 40, 42, 43, 57, 58, 59, 65, 66, 71, 74, 78, 95, 107, 109, 121, 131, 148, 155, 156, 160, 162, 163, 165, 166, 168, 169, 174, 175, 176, 178, 186, 187, 195 integration agreement, 71, 109, 155, 163, 168, 169, 186 integration management in private firms, 74 intent, 134, 135, 181 interdependence, 192 internal market, 24, 25, 26, 30, 33, 194 invalidity, 9, 36, 38 investment, 30, 96, 124 Ireland, 46, 89 job clubs, 51 job interviews, 165 job matching, 28 job placement, 127, 156, 164, 174, 180, 187 job search, 87, 154, 162, 166, 190 job seeker’s agreements, 57 jobseeker, 43, 71, 87, 124, 125, 128, 131, 153, 154, 156, 160, 164, 165, 166, 167, 169, 170, 173, 180, 183, 185, 186 Jobseeker’s Allowance, 53, 57, 201

165, 171,

126, 162, 171, 154,

177

Index jurist, 144 just society, 57, 59 Kaufmann, Franz-Xaver, 39, 69, 118, 203, 204, 206, 210 Kennedy, John F., 153 Keynes, John Maynard, 95 labour, 9, 10, 12, 19, 22, 27, 28, 31, 34, 36, 37, 38, 39, 41, 42, 43, 44, 47, 48, 49, 50, 51, 52, 53, 56, 57, 58, 59, 60, 62, 63, 65, 66, 67, 68, 69, 70, 71, 74, 78, 82, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 104, 105, 109, 115, 116, 117, 118, 121, 122, 123, 124, 125, 126, 128, 131, 133, 153, 155, 156, 157, 158, 159, 160, 161, 163, 166, 167, 168, 170, 171, 172, 173, 174, 178, 180, 181, 182, 183, 184, 185, 186, 187, 189, 194 labour administration, 51, 155, 156, 157, 158, 160, 163, 166, 167, 171, 173 labour exchange, 39, 49, 59, 68, 74, 87, 117, 121, 122 labour law, 50, 123, 126 labour market, 9, 12, 19, 22, 27, 28, 29, 31, 37, 38, 39, 41, 42, 43, 48, 50, 56, 57, 58, 59, 63, 64, 65, 66, 67, 68, 69, 70, 71, 85, 89, 90, 93, 94, 95, 96, 100, 101, 104, 105, 109, 115, 116, 117, 124, 127, 128, 133, 154, 156, 163, 167, 170, 171, 172, 173, 178, 182, 184, 187, 194 labour market policy, 22, 58, 63, 66, 67, 182 labour market reform, 9, 69, 109 labour promotion, 62, 117, 125, 127, 131, 153, 180, 181, 182 lack of activation, 47 law governing the rights of the child, 65 law of the workplace, 126 legal community, 86, 145 legal conditions, 21, 142

178

legal harmonisation, 26 legal relationship, 12, 119, 123, 140, 164, 166, 171, 172, 196 legal theorists, 20 legislation, 151, 170, 194 less eligibility test, 48 Lessenich, Stephan, 95, 105, 107, 207 level of social benefits, 144 liberalism, 49, 105, 111 libertarianism, 110 liberty, 93, 110, 112, 125, 143, 178 life partner, 189 lifelong learning, 28 lifestyle, 11, 32, 118, 128, 140, 141, 143, 146 Lisbon strategy, 29, 30 livelihood, 12, 85, 126, 175, 176, 188, 189, 196 living, 9, 30, 47, 56, 57, 64, 67, 72, 75, 79, 84, 86, 90, 98, 100, 107, 117, 119, 120, 122, 126, 148, 158, 191, 194 living standard, 67, 191 Locke, John, 105 Lone Parent Allowance, 89 long-term unemployed, 39, 70 Louis XIII, King of France, 61 Luther, Martin, 83 Luxemburg, 27 Maastricht criteria, 24 Magic Flute, opera, 119 maids, 47 majority interests, 103 make work pay, 29, 58, 93, 149, 183 Malthus, Robert, 46 managed care, 73 management by objectives, 27 Manpower Services, 51 manufactured risks, 141 Margalit, Avishai, 81, 168, 207

Index market, 24, 25, 26, 28, 34, 37, 45, 48, 50, 59, 62, 67, 71, 77, 85, 86, 94, 95, 99, 100, 103, 104, 111, 117, 132, 156, 163, 166, 167, 169, 170, 172, 199, 207, 209 marriage, 89, 144 mass unemployment, 69, 100 means-tested social benefits, 107 medicine, 116 medieval times, 83 Member State, 24 Mills, C.W., 145 minimal state, 103, 192 minimum income, 97 misconduct, 130, 132, 137, 179, 184, 187 modernisation, 5, 9, 30, 67, 194 modernisation of social protection, 9, 30, 194 monetary policy, 24 monopoly, 54, 132, 158, 169 moral hazard, 140, 150 morals, 60, 113 municipal social policy, 74, 75, 76, 77, 174 Murray, Charles, 79, 148, 208 musical schools, 76 nation state, 97 National Assembly, 61 National Workshops, 62 nature, 12, 77, 80, 87, 125, 126, 176, 178 needs, 22, 43, 54, 70, 74, 89, 107, 110, 155, 160, 168, 176, 187, 188, 190, 191, 195, 196 negative integration, 26 negative liberty, 143 neoliberalism, 31, 32, 56, 79, 104, 105, 110, 111, 112, 113, 192 Netherlands, 5, 9, 22, 29, 34, 36, 37, 63, 67, 100, 125, 205, 208, 210, 211

New Contract for Welfare, 56, 154 New Deal, 57, 59, 92, 93, 106, 151, 203 New Deal for Welfare, 151 New Governance, 155 New Labour, 9, 54, 55, 56, 57, 106, 113, 183, 204, 209 New Public Management, 168 New Zealand, 41 Nixon, Richard, 105 no rights without responsibilities, 32, 106, 109, 193 non-binding obligation, 125, 142, 188, 189, 190 non-discrimination, 157, 171 non-smoker protection, 142 Nozick, Robert, 81 nursing institutions, 75 nursing services, 75 obligation de résultat, 176 obligation du moyen, 177 obligations, 11, 39, 53, 112, 123, 128, 131, 152, 159, 161, 162, 166, 187, 188, 190, 196, 201 obligations to disclose, 152 obtaining benefits by fraud, 150 occupational accidents, 88 occupational diseases, 88 OECD, 16, 29, 40, 44, 66, 91 old age, 10, 48, 69, 72, 73, 78, 83, 109, 115, 117, 141, 191, 193 Old Labour, 55, 57, 113 old-age security, 19, 109, 115 older employees, 28, 96 open method of coordination, 27, 33, 194 opera house, 77 out-of-pocket payments, 68 overeating, 142 parents, 22, 46, 78, 90, 149, 187

179

Index parish, 45, 47, 48 Parsons, Talcott, 111 participation, 13, 20, 43, 57, 59, 75, 91, 93, 95, 101, 107, 116, 117, 126, 130, 136, 154, 192, 193, 196, 199 parties to the collective agreement, 36 part-time employment, 36, 40 party-state, 103 passion for gambling, 136, 137 passive provision of benefits, 20 Paul, Apostle, 82 pauperisation, 46, 56, 84, 161, 188 penalisation, 91 permissiveness, 112, 145 personal efforts, 71, 185 personal intensity, 76 personal responsibility, 31, 54 physical integrity, 88, 142, 164, 180 placement, 67, 70, 71, 87, 95, 121, 156, 157, 163, 165 plant shutdowns, 66 plausible, 106 Poor Law, English (1834), 47, 49, 59, 153, 200 positive integration, 26 positive liberty, 143 positive welfare, 80 potestative clause, 91 poverty, 28, 31, 33, 45, 49, 54, 57, 59, 63, 64, 75, 84, 90, 92, 93, 97, 98, 149, 205 poverty trap, 64, 98 practice fee, 68, 191 precarious, 90, 94, 164 precaution, 139, 148, 174 pre-modern welfare state, 106, 140 prenatal care, 88 prevention, 38, 78, 139, 142, 147, 174 price stability, 25 private autonomy, 123, 124 private law, 85, 86, 144, 159, 169, 181

180

private pension scheme, 68 private placement services, 156 productivity, 29, 30 professionalization, 76 prohibition of begging, 19, 85 promoting, 23, 44, 68, 122, 139 promotion of employment, 100 proportionality, 133, 157, 164, 196 prostitution, 180, 182 protection of the environment, 25 providing welfare state, 100 provision of employment, 50 public administration, 155, 156, 157, 160, 161, 167 public budget, 24, 40 public hygiene, 84 public issues, 145 public law contracts, 160 public monopoly on placement, 39 public responsibility, 174, 191 puritanism, 113 qualification upgrades, 44 rate of inflation, 36 Rawls, John, 81 readiness for work, 41 reasonable work, 69, 125, 183, 184 reasons of conscience, 180 Rechtsstaat, 23, 111, 138, 146, 147, 189 reciprocity, 91, 119 reduced earning capacity pension, 60 re-education, 105 rehabilitation, 43, 75, 78, 88, 99, 139, 148, 162, 163, 174 reintegration, 43, 71, 96, 99, 100, 105, 128, 163, 186 reintegration charges, 128 relief works for the poor, 19, 45, 60 religious beliefs, 181

Index repetitions of examinations, 68 reporting duties, 53 responsibility, 11, 19, 22, 31, 45, 46, 49, 52, 56, 57, 61, 65, 79, 93, 96, 106, 128, 132, 139, 141, 142, 143, 146, 148, 160, 165, 166, 167, 171, 178, 180, 192, 195, 196 responsive community, 111 retraining, 148 revenue from taxes, 24 Riester-Rente, 68 right freely to choose one’s place of work, 179 right to be lazy, 125, 162, 173 right to education, 126, 179 right to freely choose work, 125 right to social security, 99 right to social welfare, 98 right to withhold, 181 right to work, 10, 11, 12, 63, 120, 121, 122, 123, 124, 125, 126, 178, 183 rights, 10, 12, 31, 32, 38, 55, 64, 65, 70, 86, 94, 101, 106, 109, 110, 111, 112, 120, 121, 123, 125, 126, 138, 140, 142, 144, 145, 147, 151, 153, 154, 159, 160, 162, 163, 168, 170, 171, 180, 193, 195, 196, 200, 207, 208, 209 rights of the child, 25 risk management, 105 risk society, 145 royal edict (1530, 1531), 83 rule of law, 12, 23, 111, 138, 146, 147, 157, 161, 170, 174, 179, 180, 185, 187, 189, 195, 196 safeguards for existing employment relationships, 41 safety net, 31, 39, 92 sanction, 93, 140, 159, 161, 165, 176, 181, 182, 183, 184, 185, 187, 188, 189, 190, 195, 196 Sarastro, 119

savings, 54 schedule of fines, 190, 196 school, 28, 39, 48, 75, 89, 126 Schröder, Gerhard, 30, 66, 68 Schumpeter, Joseph, 95 season, 85 securing one’s livelihood, 187, 188, 189 self-commitment, 166 self-confidence, 164 self-deception, 146 self-destruction, 11, 135, 136, 137, 146 self-determination, 158, 168 self-employment, 44, 150 self-endangerment, 11, 130, 134, 135, 136, 137, 138, 140, 142, 145, 146, 147 self-esteem, 100, 126, 154, 164 self-fulfilling prophecy, 98 self-fulfilment, 126 self-help, 37, 38, 71, 74, 85, 86, 88, 153 self-inflicted harm, 135 self-provision, 23, 72, 78, 105, 118, 191 self-responsibility, 10, 11, 22, 69, 73, 128, 131, 133, 134, 140, 148, 151, 192, 195 self-subsistence, 105 Sen, Amartya, 81 servants, 35, 36, 47 service, 36, 39, 74, 76, 85, 87, 89, 90, 93, 95, 97, 156, 157, 158, 163, 174 service public, 77 service society, 85 shadow economy, 188 sham contracts, 170 sickness, 27, 28, 36, 37, 38, 58, 69, 74, 78, 83, 118, 130, 139, 143, 175 single parents, 33, 75

181

Index situation, 24, 30, 33, 56, 65, 69, 71, 72, 86, 93, 94, 95, 131, 146, 164, 165, 167, 179, 187, 196 Skidelsky, Robert, 79, 80, 148, 210 Smith, Adam, 45 smoking, 113 social administration, 22, 96, 107, 154, 161, 163, 167, 169, 174, 178, 180 social balance, 26, 32, 78 social benefit fraud, 150, 151, 152 social benefits, 10, 11, 19, 20, 21, 22, 23, 24, 28, 29, 31, 37, 38, 39, 41, 47, 52, 53, 54, 55, 57, 58, 59, 60, 61, 65, 69, 70, 74, 75, 79, 80, 82, 84, 87, 90, 91, 93, 94, 95, 98, 99, 100, 101, 104, 106, 107, 114, 117, 118, 128, 129, 130, 132, 133, 134, 137, 139, 141, 142, 143, 144, 146, 147, 148, 150, 152, 155, 157, 158, 161, 162, 166, 172, 174, 175, 176, 178, 182, 183, 185, 188, 190, 191, 192, 193, 194, 195, 196, 197 social benefits system, 20, 22, 29, 31, 39, 53, 59, 99, 107, 137, 141, 144, 147, 183 social capital, 57, 94 social citizenship, 107 social cohesion, 43, 79, 81, 113 social democracy, 32 social distress, 56, 57, 179 social ethics, 111 social Europe, 26, 90 social inclusion, 22, 26, 43, 79, 94, 124 social insurance, 37, 38, 39, 40, 60, 63, 64, 74, 75, 77, 84, 85, 86, 88, 93, 98, 101, 105, 109, 114, 117, 118, 119, 121, 129, 136, 163, 174, 192 social integration, 26, 51, 91, 94, 155 social justice, 25, 26, 30, 31, 32, 55, 79, 81, 108, 111 social law, 11, 12, 16, 23, 69, 78, 81, 82, 86, 100, 101, 124, 125, 137,

182

138, 140, 141, 144, 148, 160, 172, 174, 178 social law contingent on private law, 144 social legislation, 63, 117, 138 social market economy, 25, 26 social participation, 101, 113 social partnership, 35 social pedagogisation, 105 social policy, 5, 7, 10, 19, 22, 26, 29, 33, 35, 37, 41, 44, 54, 55, 56, 57, 60, 74, 76, 77, 78, 89, 92, 94, 96, 99, 100, 103, 104, 107, 124, 153, 174, 178, 180, 194 social progress, 25 social protection, 5, 23, 26, 30, 42, 46, 55, 56, 63, 64, 82, 86, 88, 96, 101, 109, 124, 132, 140, 144, 199, 207, 209 social reform, 59, 92, 101 social responsibility, 94, 191, 192 social rights, 20, 54, 80, 81, 91, 106, 108, 144, 180 social risks, 30, 48, 70, 86, 88, 99, 101 social security, 20, 24, 28, 30, 31, 36, 37, 38, 41, 55, 61, 63, 67, 76, 78, 80, 82, 88, 91, 94, 97, 98, 99, 100, 101, 107, 128, 132, 133, 134, 138, 139, 140, 141, 144, 145, 146, 148, 151, 154, 179, 184, 192, 195 social security income, 38 social services, 30, 77, 84, 163, 167, 174, 178 social standards, 26 social welfare, 21, 29, 39, 94, 106, 182, 188 social work, 76, 119, 171, 179, 195, 196 sociology, 164 soldiers of fortune, 60 solidarity, 11, 25, 31, 33, 38, 61, 62, 63, 64, 70, 86, 87, 90, 103, 125, 128, 136, 145 Soviet Communism, 113

Index Speenhamland, 45, 46, 47, 99, 200 sport, 137, 147, 151 sports activities involving risks, 142 spouse, 189 springboard, 31, 39, 65 stagflation, 35 stagnation, 46, 68 Stakeholder Welfare, 54, 106, 204 state, 5, 10, 12, 19, 20, 21, 22, 23, 25, 29, 31, 32, 33, 34, 35, 36, 37, 39, 41, 49, 50, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 66, 69, 73, 74, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 90, 92, 94, 95, 97, 99, 100, 102, 103, 104, 105, 107, 108, 109, 110, 111, 115, 116, 117, 118, 119, 121, 122, 131, 132, 133, 137, 138, 139, 140, 142, 143, 144, 145, 146, 147, 148, 153, 154, 155, 158, 159, 167, 169, 170, 172, 176, 178, 179, 180, 182, 184, 191, 192, 193, 194, 195, 196, 204 state failures, 132 state services, 105 state socialism, 56, 66 statute, 11, 138, 153 Statute of Artificers, 45 strategy, 9, 26, 27, 28, 31, 38, 43, 59, 64, 190, 196 subordination, 161 subsidiarity, 27 subsistence, 10, 39, 62, 63, 64, 84, 150, 158, 183, 189, 195, 196 suicide, 136 support plans, 162 surgery, 133, 164 survivor’s benefits, 144 sustainability factor, 72 swimming pool, 77 system of fines, 187 taking up a job, 87 taking up work, 63, 93, 179, 183 target groups, 42 targeting, 54

tax, 28, 29, 31, 35, 36, 50, 58, 64, 68, 69, 109, 128, 150, 154, 183 taxe de sécurité sociale, 129 technologies, 92 temporary employment, 36 territorial state, 45 Thatcher, Margaret, 9, 44, 49, 50, 51, 55, 56, 59, 107, 199, 202, 206 third parties, 145, 187, 189 third stage of life, 118 Third Way, 31, 32, 44, 55, 56, 57, 92, 113, 119, 200, 204, 206, 209 thoughtfulness, 113 three-pillar model, 9, 72, 115, 191 time off work, 41 tobacco, 137 Tocqueville, Alexis de, 46, 211 Tönnies, Ferdinand, 111 tortfeasors, 132 Tory spirit, 49 total population, 116 tough love, 119 towns, 83 trade unions, 36, 42 Training and Enterprise Councils, 51 training measure, 190 Training on the job, 51 transfer orientation, 174 troisième age, 118 ultima ratio, 147, 184 uncertainty, 21, 167 unconditional basic income, 97, 98, 99 unemployment, 24, 32, 33, 34, 35, 37, 38, 40, 42, 49, 51, 52, 53, 55, 62, 63, 66, 67, 68, 69, 70, 85, 87, 97, 98, 120, 121, 122, 131, 136, 148, 150, 153, 154, 155, 156, 161, 162, 163, 164, 166, 170, 172, 173, 181, 182, 184, 186 unemployment benefits, 42, 51, 70, 87, 131

183

Index unemployment insurance, 42, 49, 52, 53, 70, 172, 184 unilateral granting of benefits, 20 unilateral right, 106 United Kingdom, 5, 9, 22, 29, 42, 44, 58, 67, 87, 100, 154, 200, 201, 205 universal services, 76 university education, 117 university tuition fees, 193 USA, 41, 79, 110, 125, 203, 211 use of pharmaceuticals, 68 utopia, 99 vagrancy, 182 vagrants, 83 veto power, 160 vice, 61, 84, 96, 126 violence, 132, 136 virtuousness, 60 vivre en travaillant, 63 vocational training, 39 voluntary resignation from the job, 184 Wassenaar Agreement, 9, 35 welfare, 5, 7, 10, 12, 13, 19, 20, 21, 22, 23, 25, 26, 27, 29, 31, 32, 33, 34, 37, 38, 41, 44, 46, 48, 54, 59, 60, 61, 62, 69, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 92, 94, 95, 97, 99, 100, 102, 103, 104, 105, 106, 107, 108, 109, 115, 116, 117, 118, 119, 128, 132, 133, 137, 139, 140, 143, 145, 146, 148, 151, 153, 154, 155, 162, 172, 174, 176, 178, 179, 180, 181, 182, 186, 188, 191, 192, 194, 195, 196, 202, 204 welfare state, 5, 19, 20, 21, 22, 23, 31, 32, 62, 69, 78, 79, 80, 84, 85, 87,

184

90, 92, 94, 95, 100, 103, 104, 106, 108, 115, 118, 132, 137, 139, 143, 145, 146, 148, 191, 192, 193, 194, 196 welfare to work, 94 woman, 90 work, 5, 10, 19, 22, 24, 28, 29, 31, 36, 37, 38, 39, 40, 43, 44, 45, 46, 48, 51, 52, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 69, 75, 76, 78, 80, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 97, 98, 100, 101, 106, 114, 118, 120, 121, 122, 123, 124, 125, 126, 127, 130, 133, 143, 144, 148, 150, 154, 155, 162, 164, 165, 171, 172, 173, 174, 176, 179, 180, 182, 183, 194, 202, 204, 208, 209 work life, 51 work organisation, 28 work routine, 164 work with the elderly, 76 workers, 19, 45, 47, 54, 93, 97, 120 workfare, 32, 105 workhouse, 48, 93, 172, 173 working conditions, 94, 120, 121, 122, 126, 173 working environment, 40 working hours, 35, 36, 64, 120 working life, 99, 126, 131, 175, 181 working lifetimes, 117 working society, 54, 62, 94, 97, 99, 100, 101, 121, 126, 162, 173, 194 working world, 37, 89, 90, 97, 116 young people, 39, 40, 42, 50, 51, 54, 57, 59, 95, 116, 142, 150, 187 youth services, 74, 75 youth unemployment, 28